United States v. Alexander Beriguete , 342 F. App'x 576 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 21, 2009
THOMAS K. KAHN
No. 09-10031 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-20391-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER BERIGUETE,
Defendant-Appellant.
________________________
No. 09-10158
Non-Argument Calendar
________________________
D. C. Docket No. 06-20689-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER BERIGUETE,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(August 21, 2009)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Alexander Beriguete appeals his 168-month
aggregate sentence, which he received for two counts relating to drug offenses —
conspiring to possess with intent to distribute five or more kilograms of cocaine
and attempting to possess the same amount, in violation of 21 U.S.C. §§ 846,
841(b)(1)(A)(i) and 18 U.S.C. § 2 — and one count of bond jumping, in violation
of 18 U.S.C. § 3146(a)(1). He asserts that his sentence was substantively
unreasonable and that the district clearly erred by denying his request for a
reduction of sentence for acceptance of responsibility. We disagree and AFFIRM
his sentence.
I. BACKGROUND
In May 2005, a grand jury returned a four-count indictment against
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Beriguete and two co-defendants in which Beriguete was charged with the
aforementioned drug offenses. Beriguete was on bond at the time the indictment
was entered. He failed to report to the probation office as required by the
conditions of that bond, which led the district court to revoke the bond and issue a
warrant for his arrest that same month. In November 2006, a grand jury entered a
second indictment against Beriguete, which charged him with a single count of
bond jumping. The district court subsequently deemed Beriguete a fugitive, and he
was arrested in Boston, Massachusetts in May 2008.
At a consolidated hearing in October 2008, Beriguete pled guilty, without
the benefit of a plea agreement, to the two drug-related counts in the first
indictment and the bond-jumping count in the second indictment. The two cases
were consolidated for sentencing purposes, and a sentencing hearing was held in
December 2008. At the hearing, the court noted that, under the sentencing
guidelines, Beriguete’s adjusted offense level was 341 and his criminal history was
II, which meant that his advisory guidelines range was 168 to 210 months of
imprisonment. Beriguete asserted that these calculations did not reflect a reduction
for acceptance of responsibility, to which he believed he was entitled. Both the
government and his probation officer stated that they did not support such a
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Beriguete’s base offense level was 32, but the bond jumping made him eligible for a two-
level increase under U.S.S.G. § 3C1.1 (Nov. 2008) for obstruction of justice.
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reduction because of Beriguete’s attempts to avoid arrest. Beriguete replied that
his conduct after his arrest evinced an acceptance of responsibility since he did not
proceed to trial and announced early on that he intended to plead guilty. He also
argued that, in sentencing him, the court should take into account his minor role in
the offense, although he did not request a minor role reduction.
The district court noted that Beriguete’s behavior did not reflect acceptance
of responsibility and thus rejected his request for a reduction along those lines, a
decision to which Beriguete objected. The court found that his advisory guidelines
range had been calculated correctly and that it adequately reflected the factors
discussed in 18 U.S.C. § 3553. It therefore sentenced Beriguete to 168 months of
imprisonment, consisting of two concurrent 120-month sentences for the two drug
offenses and a 48-month consecutive sentence for the failure to appear.2 Beriguete
appealed the sentence.
II. DISCUSSION
On appeal, Beriguete raises two issues. He argues that the district court
should have reduced his offense level for acceptance of responsibility, despite his
fugitive status and his failure to appear on the drug charges. Additionally, he
maintains that his aggregate sentence is unreasonable in light of his personal
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The statutory minium sentence for the drug offenses was 120 months of imprisonment. See
21 U.S.C. § 841(b)(1)(A)(ii).
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history and circumstances. We address these arguments in turn.
A. Acceptance of Responsibility
“We review a denial of a reduction of sentence for an acceptance of
responsibility for clear error.” United States v. Knight, 562 F.3d 1314, 1322 (11th
Cir. 2009) (citation omitted). A district court’s findings with respect to such a
denial are “entitled to great deference on review and should not be disturbed unless
[they are] without foundation.” Id. (quotation marks and citation omitted). “The
defendant bears the burden of clearly demonstrating acceptance of responsibility
and must present more than just a guilty plea.” United States v. Sawyer, 180 F.3d
1319, 1323 (11th Cir. 1999). Except in “extraordinary cases,” the fact that a
defendant engaged in conduct that would result in an enhancement under U.S.S.G.
§ 3C1.1 for obstructing or impeding justice generally “indicates that the defendant
has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1,
comment. (n.4); see United States v. Singh, 291 F.3d 756, 765 (11th Cir. 2002).
In this case, Beriguete’s request for an acceptance-of-responsibility
reduction primarily focused on his guilty plea, which we have deemed to be an
insufficient basis for such an adjustment. See Sawyer, 180 F.3d at 1323.
Furthermore, Beriguete’s conduct made him eligible for a § 3C1.1 enhancement
and he has not identified any “extraordinary circumstances” that would justify
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applying a § 3E1.1 acceptance of responsibility adjustment in addition to that
enhancement. Singh, 291 F.3d at 765. Accordingly, we conclude that the district
court did not clearly err in denying Beriguete’s request for an adjustment for
acceptance of responsibility.
B. Reasonableness of Sentence
Beriguete contends that the district court’s sentence was unreasonable
because it improperly relied on one factor, his bond jumping. He asserts that the
court ignored various mitigating factors, including that his entitlement to a
downward departure based on his cultural assimilation into the United States and
his need to support three children and that, under other circumstances, he would
have received a minor-role reduction because the amount of cocaine was not
reasonably foreseeable by him.
“We review the sentence imposed by the district court for reasonableness.”
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (per curiam). The
party challenging that sentence bears the burden of establishing that the sentence is
unreasonable. See id. at 788. The sentence must be both procedurally and
substantively reasonable. See United States v. Gonzalez, 550 F.3d 1319, 1323
(11th Cir. 2008) (per curiam). A sentence would be procedurally unreasonable if,
for example, the district court calculated the guidelines range incorrectly, treated
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the guidelines as mandatory rather than advisory, did not consider the appropriate
statutory factors, based a sentence on clearly erroneous facts, or did not provide
adequate explanation for the chosen sentence. See id.We evaluate the substantive reasonableness of the sentence using an abuse-
of-discretion standard and take into account “the totality of the circumstances,
including an inquiry into whether the statutory factors in § 3553(a) support the
sentence in question.”3 Id. at 1323–24. The court must show that it has given
proper consideration to the defendant’s arguments and the factors in section
3553(a); however, it need not discuss each factor or state explicitly that it has
considered the factors. See Talley, 431 F.3d at 786. “The weight to be accorded
any given § 3553(a) factor is a matter committed to the sound discretion of the
district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)
(quotation marks and citation omitted). A sentence may be unreasonable, though,
if the district court unjustifiably relied on any one § 3553(a) factor. See United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the
need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims.
See 18 U.S.C. § 3553(a).
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In this case, the district court committed no procedural errors because the
record indicates that it determined Beriguete’s offense level and criminal history
category, treated the Guidelines as advisory, and considered the § 3553(a) factors
in sentencing him. See Gonzalez, 550 F.3d at 1323.
The sentence was also substantively reasonable. Since the sentence was
within the applicable advisory guidelines range, we expect it to be reasonable, and
none of Beriguete’s arguments call this expectation into question. See Talley, 431
F.3d at 788. The district court was bound by the statutory minimum for the drug
offense and thus did not unjustifiably rely on Beriguete’s failure to appear in
sentencing him since that was the only conduct at issue for the non-mandatory
portion of his sentence. See United States v. Shelton, 400 F.3d 1325, 1333 n.10
(11th Cir. 2005). Beriguete failed to show that his family circumstances were
sufficiently extraordinary to merit consideration of whether his sentence should be
outside the guideline range. See United States v. DeVegter, 439 F.3d 1299, 1307
(11th Cir. 2006). Additionally, although the district court could have considered
Beriguete’s cultural assimilation as a mitigating factor, it was not required to
reduce his sentence as a result. See United States v. Lopez-Velasquez, 526 F.3d
804, 807 (5th Cir. 2008) (per curiam). Moreover, Beriguete was not entitled to a
minor-role reduction because the amount of drugs was reasonably foreseeable
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since he previously had engaged in similar conduct with his co-defendants. See
United States v. Taylor, 17 F.3d 333, 340 (11th Cir. 1994).
Beriguete’s sentence also was justified based on his prior conviction for drug
trafficking, his fugitive status, and his use of a false name upon his arrest, all of
which revealed a need to promote respect for the law, provide deterrence, and
protect the public from future harm. Additionally, his sentences are substantially
less than the statutory maximum sentences of life imprisonment for the drug
offenses and 120 months for the bond jumping, respectively. We therefore find
that Beriguete has not demonstrated that his sentence is unreasonable and thus
conclude that the district court did not abuse its discretion in sentencing him to 168
months of imprisonment.
III. CONCLUSION
Beriguete argues that his 168-month sentence for various drug offenses and
bond jumping was substantively unreasonable and that the district should have
granted his request for a reduction of sentence for acceptance of responsibility.
Based on our review of the record, we conclude that the court did not clearly err in
denying his request for an acceptance-of-responsibility reduction and that his
sentence was procedurally and substantively reasonable. We therefore AFFIRM
his sentence.
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AFFIRMED.
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