United States v. Cesar Morales Bravo , 271 F. App'x 877 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 28, 2008
No. 07-14122 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00149-CR-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR MORALES BRAVO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 28, 2008)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Cesar Morales Bravo appeals his sentence of 77 months’ imprisonment,
imposed following his guilty plea for illegal re-entry, in violation of 8 U.S.C.
§ 1326(a). After a thorough review of the record, we affirm.
Bravo, a citizen of Mexico who had re-entered the United States without
permission after having been deported, entered a guilty plea to illegal re-entry
without a written plea agreement.
The probation officer prepared a presentence investigation report (“PSI”),
assigning a base offense level of 8 under U.S.S.G. § 2L1.2(a), with a 16-level
enhancement under § 2L1.2(b)(1)(A)(i) because Bravo previously had been
convicted of a felony drug offense and two crimes of violence. With a reduction
for acceptance of responsibility, the total adjusted offense level was 21. The
probation officer noted that Bravo had been deported twice in 1998 and again in
2004 after his convictions, and that he had re-entered illegally in 1993, 1996, and
twice in 1998. With a criminal history category VI, the corresponding guidelines
range was 77 to 96 months’ imprisonment.
Although Bravo filed no objections to the PSI, he filed a sentencing
memorandum requesting a sentence at the low end of or below the advisory
guidelines range based on the § 3553(a) factors. He explained that the nature and
circumstances of the offenses, along with the history and characteristics of the
defendant, justified a sentence below the guidelines range. He noted that there
were no weapons or drugs found when he was arrested. He asserted that he had a
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good work ethic, had assisted roofing homes after Hurricane Katrina, and that he
had a poor upbringing in which his mother emigrated to the United States without
him when he was a small child. He explained that his children were U.S. citizens
and that he wanted to provide for them and for his ailing father who remained in
Mexico. He noted that he faced deportation after his term of imprisonment, and
that he faced a sentencing disparity because the Northern District of Georgia was
not a “fast-track” district.1 He encouraged the court to impose a sentence about
five months below the guidelines range in light of these factors, and he noted that
the conditions of pre-trial detention were deplorable.
The court found that Bravo was guilty of “outlawry,” and that society had
decided that someone with his background was not permitted to re-enter the
country. Although the court noted the possible work ethic of Mexican immigrants,
it focused on the need to deter and concluded that the guidelines were entitled to
deference on how to treat a defendant like Bravo. The court considered the
1
The fast-track departure is available to defendants who “agree to the factual basis [of the
criminal charge] and waive the rights to file pretrial motions, to appeal, and to seek collateral relief
(except for ineffective assistance of counsel),” United States v. Arevalo-Juarez, 464 F.3d 1246, 1248
(11th Cir. 2006) (citation omitted), but only in judicial districts that participate in a [n] “early
disposition program authorized by the Attorney General of the United States and the United States
attorney for the district in which the court resides.” U.S.S.G. § 5K3.1. This court has rejected
Bravo’s argument that the “fast track” program creates a sentencing disparity, and we are bound by
decisions of prior panels until overruled by this court sitting en banc or by the Supreme Court. See
United States v. Anaya Castro, 455 F.3d 1249, 1252-1253 (11th Cir. 2006) (addressing fast-track
programs); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (holding that decisions
by prior panels are binding).
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hardships associated with Bravo’s pre-trial detention and imposed a sentence of 77
months’ imprisonment. After Bravo objected to the court’s alleged failure to
consider the other sentencing factors aside from deterrence, the court clarified that
it had considered other factors and Bravo’s record to reach the sentence imposed.
Bravo now appeals, asserting that the district court imposed an unreasonable
sentence because the punishment was greater than necessary to meet the goals set
forth in § 3553(a), and that the court overemphasized the deterrence factor and
failed to consider other mitigating circumstances. The government responds that
this court should revisit its prior decisions and hold, consistent with Rita v. United
States, 127 S. Ct. 2456 (2007), that a sentence within the guidelines range is
presumptively reasonable.2
“‘In reviewing the ultimate sentence imposed by the district court for
reasonableness, [this court] consider[s] the final sentence, in its entirety, in light of
the § 3553(a) factors.’” United States v. Valnor, 451 F.3d 744, 750 (11th Cir.
2006) (quoting United States v. Thomas, 446 F.3d 1348, 1349 (11th Cir. 2006)).
This reasonableness standard is deferential. United States v. Talley, 431 F.3d 784,
2
This court has rejected the government’s argument. See United States v. Campbell, 491
F.3d 1306, 1313-1314 & n.8 (11th Cir. 2007) (deciding post-Rita not to presume as reasonable a
sentence within the properly calculated range). We are bound by decisions of prior panels until
overruled by this court sitting en banc or by the Supreme Court. United States v. Steele, 147 F.3d
1316, 1317-18 (11th Cir. 1998).
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788 (11th Cir. 2005). The Supreme Court recently clarified this standard as a
review for abuse of discretion. Gall v. United States, ---U.S. ----, 128 S. Ct. 586,
594, 169 L. Ed. 2d 445 (2007). Bravo bears the burden of establishing that the
sentence is unreasonable. United States v. Bohannon, 476 F.3d 1246, 1253 (11th
Cir.), cert. denied, 127 S. Ct. 2953 (2007).
The district court must impose a sentence that is both procedurally and
substantively reasonable. Gall, 128 S. Ct. at 597. When reviewing the sentence for
procedural reasonableness, this court must “ensure that the district court committed
no significant procedural error, such as . . . failing to consider the [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence.” Gall, 128 S. Ct. at 597. Generally,
when sentencing inside the advisory guideline range, the district court is required
neither to state explicitly that it has considered each of the § 3553(a) factors in
open court, nor to give a lengthy explanation for its sentence. See United States v.
Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (citing Rita, 127 S. Ct. at 2468-69).
Substantive reasonableness involves inquiring whether the court abused its
discretion in determining that the § 3553(a) factors support the sentence in
question. Gall, 128 S. Ct. at 597, 600. Pursuant to § 3553(a), the sentencing court
shall impose a sentence “sufficient, but not greater than necessary” to reflect the
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seriousness of the offense, promote respect for the law, provide just punishment for
the offense, deter criminal conduct, protect the public from future criminal conduct
by the defendant, and provide the defendant with needed educational or vocational
training or medical care. See 18 U.S.C. § 3553(a)(2). Section 3553(a) also
requires the sentencing court to consider the nature and circumstances of the
offense, the Guidelines range, and the need to avoid unwarranted sentence
disparities. See 18 U.S.C. § 3553(a)(1), (4),(6). This court may conclude that a
district court abuses its discretion if it weighs the factors in a manner that
demonstrably yields an unreasonable sentence. United States v. Pugh, 2008 WL
253040, at *9 (11th Cir. 2008).
Here, based on its comments, the court considered Bravo’s lengthy criminal
history and repeated illegal re-entries and deportations to conclude that a sentence
within the guidelines was necessary to punish and deter. In sentencing Bravo at
the low end of the range, the court noted the conditions of pre-trial confinement.
The court also acknowledged the work ethic Bravo alleged, but found that the
sentence was necessary to promote respect for the law. Thus, contrary to Bravo’s
claims, the court did not fail to consider factors other than deterrence.
Accordingly, the sentence imposed was procedurally and substantively
reasonable, and we AFFIRM.
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