United States v. Geormani Hernandez Gari , 545 F. App'x 816 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10493
Non-Argument Calendar
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D.C. Docket No. 4:07-cr-10026-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORMANI HERNANDEZ GARI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 21, 2013)
Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Geormani Hernandez Gari appeals the substantive reasonableness of his 96-
month sentence, 36 months above the five-year statutory minimum and
recommended guidelines sentence, imposed following his latest resentencing on 33
counts of unlawfully smuggling aliens into the United States. See 8 U.S.C.
§ 1324(a)(2)(B)(iii). Gari contends that the district court’s imposition of a
substantial upward variance from the recommended guidelines sentence is not
justified by the facts of his case, which he describes as a run-of-the-mill alien
smuggling case with no significant aggravating factors.
I.
The long and sinuous path leading up to this appeal — the third of its kind
thus far — began on June 25, 2007, when Gari smuggled over thirty Cuban
nationals by boat into Key Largo, Florida. Gari was indicted on 34 counts of
illegally bringing aliens into the United States and, following a jury trial, was
convicted on all counts. Although his sentencing guidelines range was initially
calculated at 33 to 41 months imprisonment, it was automatically increased to 60
months to reflect the mandatory minimum sentence for his offenses. See 8 U.S.C.
§ 1324(a)(2)(B); United States Sentencing Guidelines § 5G1.1(b) (“Where a
statutorily required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum sentence shall be the
guidelines sentence.”). The district court imposed an upward variance sentence of
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96 months imprisonment based on its assessment of the relevant factors listed in 18
U.S.C. § 3553(a), emphasizing that Gari had refused to stop his boat while being
pursued by the United States Coast Guard and had lied to federal agents about
harboring immigrants aboard the vessel. It also noted that Gari’s case was but one
of seven on its docket that day involving alien smuggling, all of which diverted
scarce resources from other Coast Guard operations and suggested an acute need to
deter such conduct.
In the first of Gari’s three appeals, we reversed a single count of conviction
due to insufficient evidence, affirmed the remaining 33 counts, and remanded for
resentencing in light of the vacated count. United States v. Gari (Gari I), 572 F.3d
1352, 1359–60, 1366 (11th Cir. 2009). The elimination of a single count of
conviction had no impact on Gari’s five-year statutory minimum and
recommended guidelines sentence. The district court again sentenced Gari to 96
months’ imprisonment, noting that the nature and scope of his offense conduct
remained virtually unchanged since his original sentencing hearing, as did the need
to adequately deter similar criminal activity. The court also found that Gari had
engaged in inherently dangerous conduct when he crossed the Florida Straits at
night in a 33-foot boat without running lights and overloaded with over 30
passengers.
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In the second of Gari’s direct appeals, we affirmed his 96-month sentence as
both procedurally and substantively reasonable. United States v. Gari (Gari II),
394 F. App’x 585, 589–90 (11th Cir. 2010). We held that the district court had
“properly considered and adequately explained its findings about the nature and
circumstances of the offense, its seriousness, the need to promote respect for the
law, and the need for the sentence imposed to afford adequate deterrence to
criminal conduct.” Id. (quotation marks and citations omitted). We further held
that, under the totality of the circumstances, the district court did not abuse its
discretion in imposing an upward variance sentence of 96 months’ imprisonment,
which was still 84 months below the 15-year statutory maximum. Id. at 590.
Gari then filed a motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255, claiming that his trial counsel rendered constitutionally ineffective
assistance by failing to properly advise him about the relative benefits and risks of
proceeding to trial in lieu of accepting the government’s plea offer, which carried a
recommended sentence of 60 months imprisonment. The district court granted the
§ 2255 motion, finding that trial counsel had failed to advise Gari that he faced a
possible 15-year maximum sentence and had affirmatively misadvised Gari that he
would receive no more than 6 years if convicted at trial. The court therefore
vacated Gari’s sentence and ordered yet another sentencing hearing.
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At his second resentencing hearing, Gari and the government jointly
recommended a sentence of time served, which would equal a sentence of roughly
65 months given the amount of time Gari had already been incarcerated. The
district court, after noting that it would not have been bound by the proposed plea
offer’s recommendation of a 60-month sentence and that counsel’s deficient
performance had no bearing on the appropriate sentence, once again sentenced
Gari to 96 months imprisonment on the surviving 33 counts of alien smuggling.
The court again concluded that a sentence above the mandatory minimum was
warranted by the seriousness of Gari’s offense conduct, including his failure to
comply with the Coast Guard’s instructions to stop his boat, his subsequent lies to
law enforcement officials that he had no aliens aboard the boat, and the safety
hazard created by piling over 30 passengers onto a 33-foot vessel. Given these
“aggravating circumstances,” which were unaffected by trial counsel’s
performance, the court saw no reason to depart from its earlier sentencing decision.
II.
Gari now challenges the substantive reasonableness of his 96-month
sentence, contending that there were no significant aggravating factors warranting
an upward variance from the recommended guidelines sentence and that the district
court’s stated justifications were inadequate to support such a variance. He
additionally notes that had he received adequate advice from trial counsel,
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accepted the government’s plea offer, and thereby received a three-level guidelines
reduction for acceptance of responsibility, his advisory guidelines range would
have been 24 to 30 months imprisonment, making a 96-month sentence clearly
unreasonable.
We typically review the substantive reasonableness of a sentence, whether
within or without the advisory guidelines range, for an abuse of discretion in light
of the totality of the circumstances and with specific reference to the § 3553(a)
sentencing factors. See United States v. Irey, 612 F.3d 1160, 1188–90 (11th Cir.
2010) (en banc). Those factors include: (1) the nature and circumstances of the
offense; (2) the history and characteristics of the defendants; (3) the need to reflect
the seriousness of the offense, to promote respect for the law, to afford adequate
deterrence to criminal conduct, and to protect the public from further crimes of the
defendant; and (4) the applicable guidelines sentence. 18 U.S.C. § 3553(a). A
variance from the applicable guidelines sentence must be supported by a
“sufficiently compelling” justification, though 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, 50–51, 128 S.Ct. 586, 597
(2007). We will vacate a sentence as substantively unreasonable only if we are
“left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
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lies outside the range of reasonable sentences dictated by the facts of the case.”
Irey, 612 F.3d at 1190 (quotation marks omitted).
Nevertheless, because our prior decision in Gari II upheld the substantive
reasonableness of an identical 96-month sentence for the same 33 counts of alien
smuggling, we may not revisit that issue under the law of the case doctrine unless
one of three exceptions applies: (1) a subsequent proceeding has produced
substantially different evidence; (2) there has been an intervening change in the
controlling law; or (3) the prior appellate decision is clearly erroneous and would
work manifest injustice. See United States v. Stinson, 97 F.3d 466, 469 (11th Cir.
1996). But there are no material differences bearing on the reasonableness of
Gari’s sentence, whether legal or factual, between his first resentencing, which
culminated in our decision in Gari II, and the second resentencing underlying this
appeal.
The district court’s intervening determination that defense counsel provided
ineffective assistance with regard to Gari’s decision to reject the government’s plea
offer and proceed to trial in no way impacts the substantive reasonableness of his
sentence under the relevant § 3553(a) factors. See 18 U.S.C. § 3553(a). Contrary
to Gari’s current suggestion, had he received competent advice from counsel,
accepted the government’s plea offer, and received a guidelines reduction for
acceptance of responsibility, his advisory guidelines sentence — one of the §
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3553(a) factors — would have remained unchanged given the applicable five-year
mandatory minimum sentence. See U.S.S.G. § 5G1.1(b). And while the
government effectively recommended a sentence of 65 months imprisonment at
Gari’s latest resentencing hearing, which it did not do at the earlier hearing, the
government’s recommendation also did not factor into any of the relevant §
3553(a) considerations. As Gari himself acknowledged at his second resentencing
hearing, “there is nothing today that changes from the time sentence was decided”
at his first resentencing. The law of the case doctrine thus precludes us from
reconsidering the substantive reasonableness of Gari’s 96-month sentence.
Even setting aside the law of the case doctrine, we cannot say that the
district court abused its discretion and committed a clear error in judgment in
determining that an upward variance of 36 months from the advisory guidelines
sentence was justified by the particular facts of Gari’s case and a number of the
§ 3553(a) factors, including the nature and scope of his alien smuggling offense,
the circumstances surrounding that offense, and the need to promote respect for the
law and adequately deter similar criminal conduct by Gari and others. For these
reasons, we affirm Gari’s sentence.
AFFIRMED.
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