United States v. Rolando Gonzalez-Delgado , 271 F. App'x 837 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 26, 2008
No. 07-10713 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-10017-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO GONZALEZ-DELGADO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 26, 2008)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Rolando Gonzalez-Delgado (“Delgado”)1 appeals his sentence resulting
from his pleading guilty to various alien-smuggling offenses. Delgado pleaded
guilty to the following 67 counts: involuntary manslaughter, in violation of 18
U.S.C. § 1112 (Count 1); conspiracy to smuggle aliens into the United States, in
violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (Count 2); encouraging and inducing
aliens to enter the United States, resulting in death, in violation of 8 U.S.C. §
1324(a)(1)(A)(iv) and (a)(1)(B)(iv) (Counts 3-33); conspiracy to smuggle aliens
for profit in violation of 18 U.S.C. § 371 (Count 34); smuggling aliens for profit,
in violation of 8 U.S.C. Section 1324(a)(2)(B)(ii) (Counts 35-65); unauthorized
entry into Cuban territorial seas, in violation of 50 U.S.C. § 192, 33 C.F.R. §§
107.215(a) and 107.230, and 18 U.S.C. § 2237(a)(1), (2) (Count 67).
I. BACKGROUND
All of the charges in this case stem from Delgado’s attempt to smuggle 31
aliens into the United States. Delgado, along with two other individuals, used a
go-fast vessel, designed to hold nine people, to attempt to transport 34 people (31
aliens and three smugglers) from Cuba to South Florida. The aliens were to pay
the smugglers between $8,000 and $10,000 when they arrived in the United States.
1
Codefendant Heinrich Castillo-Diaz moved to dismiss his appeal with prejudice, which
we granted by separate order.
2
Two Coast Guard vessels intercepted Delgado’s vessel 30 nautical miles south of
Key West. The Coast Guard instructed Delgado to stop, but he accelerated and
began executing evasive maneuvers. After a 45-minute chase, the Coast Guard
used disabling fire to stop the go-fast vessel. When the Coast Guard boarded the
vessel, they found that many of the aliens had been injured, one seriously injured.
The seriously injured alien died while being transported to a medical facility.
At the sentencing hearing, the court calculated a Guidelines range of 57-71
months’ imprisonment. After hearing Coast Guard testimony about severe
problems and dangers associated with alien smuggling, the district court sentenced
Delgado to the following concurrent terms: 60 months’ imprisonment for Counts
1, 34, and 67; 120 months’ imprisonment for Counts 35-36 and 66; and 144
months’ imprisonment for Counts 2 and 3-33 and 37-65. Delgado objected that
his 144-month sentences was unreasonable. The court overruled his objection and
entered judgment against Delgado. Delgado then perfected this appeal.
II. ISSUES
(1) Whether the sentence imposed by the district court was reasonable.
(2) Whether the district court committed reversible error under 18 U.S.C. §
3553(c)(2) by failing to provide Delgado with written statements of the reasons for
the above-Guidelines sentence.
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III. STANDARDS OF REVIEW
“We review the sentence imposed by the district court for reasonableness.”
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). “Regardless of
whether the sentence imposed is inside or outside the Guidelines range, the
appellate court must review the sentence under an abuse-of-discretion standard.”
United States v. Gall, 128 S. Ct. 586, 597, 169 L. E.2d 445 (2007). “Because
[Delgado] did not object in the district court to its failure to provide a written
statement pursuant to 18 U.S.C. § 3553(c)(2) and U.S.S.G § 4A1.3(c), the absence
of a written statement is reviewed only for plain error.” United States v. Loggins,
165 Fed.Appx. 785, 788 (11th Cir. 2006) (per curiam) (unpublished opinion).
IV. DISCUSSION
(1) Reasonableness
Reasonableness review consists of two inquiries: whether the sentence is
procedurally reasonable and whether the sentence is substantively reasonable. See
Gall, 128 S. Ct. at 597.
Delgado alleges that the sentence was procedurally unreasonable because
the district court considered impermissible factors in determining the sentence.
See United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006) (“[A]
sentence can be unreasonable, regardless of length, if the district court’s selection
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of the sentence was substantially affected by its consideration of impermissible
factors.”). Specifically, Delgado alleges that the court impermissibly considered
“local and community conditions” in deciding to impose an above-guidelines
sentence. In support of this view, Delgado relies on a pre-Booker decision from
this court, United States v. Hadaway, 998 F.2d 917 (11th Cir. 1993), and a recent
opinion from the Second Circuit, United States v. Cavera, 505 F.3d 216 (2d Cir.
2007).2
In Hadaway, the defendant was convicted of violating federal firearms
statutes by possessing a sawed-off shotgun. Hadaway sought a downward
departure because members of the rural community in which he lived often
violated firearms laws and thus viewed the Guidelines range to be excessive. The
district court declined to grant this downward departure and on the appeal this
court held that “departures based on ‘community standards’ are not permitted
under the Sentencing Guidelines.” Hadaway, 998 F.2d at 920.
In Cavera, the defendant was convicted of trafficking firearms in New York
City. The district court imposed an above-Guidelines sentence solely based on the
2
Delgado actually relies on the first Cavera opinion issued by the Second Circuit, which
was unpublished. This opinion was subsequently withdrawn and replaced with the published
opinion cited above. Because the holding of the published opinion is very similar and still
relevant, our citations are to this opinion.
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population density of New York, which made the crime more dangerous in the
court’s opinion. The Second Circuit reversed, stating that “[u]nder the
circumstances of this case, the district court’s reliance on the simple fact of
population density to impose a non-Guidelines sentence constituted legal error and
rendered defendant’s sentence unreasonable.” Cavera, 505 F.3d at 219.
Delgado’s argument in this case fails because a reading of the record clearly
reveals that the sentence was not substantially affected by the consideration of
local and community conditions. Rather, the upward variance from the Guidelines
range resulted from the nature and circumstances of the offense and the need to
protect the public. Unlike Cavera, where the district court made “no reference to
any characteristic particular to the defendant or his crime,” the court in this case
specifically addressed the both the nature and characteristics of the crime and the
defendant in imposing the sentences. Id. at 221.
In discussing the nature of the offenses, the court specifically noted the risk
imposed on the United States Coast Guard by the high-speed chase, as well as the
risk to the aliens given the vessel’s overcrowding. The court also recognized the
ultimate consequence of that risk–the death of one alien. In discussing the
characteristics of Delgado, the court repeatedly referenced the fact that he was a
greedy mercenary. The court also stated that it was going to send a message to
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these criminals who think that smuggling’s rewards outweigh its risks. Though
the court did mention the desire to deter smuggling in South Florida and
interviewed a Coast Guard supervisor from South Florida, the record reveals that
the sentence imposed was not substantially affected by the consideration of local
and community conditions, but resulted from the nature and characteristics of the
offense and defendant as well as the desire to deter all future smugglers.
Therefore, we conclude that the sentence imposed was procedurally reasonable.
Delgado also alleges that his 144-month sentence was substantively
unreasonable. We disagree. As the district court correctly noted, this was a truly
horrible crime in which the defendant risked not only the lives of the 31 aliens
(one of whom was actually died) aboard his boat, but also the lives of countless
members of the United States Coast Guard. Though Delgado’s 144-month
sentence was above the Guidelines range, it was also significantly less than the
statutory maximum of life imprisonment. Furthermore, the facts of this case are
strikingly similar to United States v. Rodriguez, 203 Fed.Appx. 309 (11th Cir.
2006) (per curiam) (unpublished opinion), which also involved the smuggling of
illegal aliens from Cuba to South Florida.
In Rodriguez, the defendants also engaged in a high-speed chase with the
United States Coast Guard, resulting in the death of one of the aliens. The
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applicable Guidelines range was identical to the range in this case, 57-71 months.
However, the district court sentenced the defendants to 120 months after finding
that “a sentence within the guidelines range failed to adequately account for the
death of a six-year-old child or the risk posed to the [Coast Guard] crew by the
high speed chase. The district court also concluded that a guidelines sentence
would not adequately deter future alien smuggling ventures.” Id. at 315. On
appeal, we affirmed this sentence, stating that the “district court’s reasons for
imposing the 120-month sentences reflect the nature and circumstances of the
offense and the need for the sentences to reflect the seriousness of the offense and
to provide deterrence, all § 3553(a) factors.” Id.
Therefore, in light of nature and circumstances of this case, and our prior
holding in Rodriguez, we conclude that the district court did not abuse its
discretion in imposing a 144-month sentence.
(2) 18 U.S.C. § 3553(c)(2)
If the sentence imposed is above the applicable Guidelines range, 18 U.S.C.
§ 3553(c)(2) requires that the court provide the specific reasons for the sentence in
its written order of judgment and commitment. The district court failed to comply
with this provision. However, because Delgado did not raise this issue below, he
“must show not only that there was error, but that it was also plain.” United States
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v. Robaina, 194 Fed.Appx. 735, 739 (11th Cir. 2006); United States v. Loggins,
165 Fed.Appx. 785, 788 (11th Cir. 2006).
Plain error “requires [Delgado] to establish (1) that there was error (2) that
was plain; (3) that affected [his] substantial rights; and (4) that seriously affected
the fairness, integrity, or public reputation of the judicial proceeding.” United
States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007). The record here
demonstrates that the Delgado was told the reasons for his above-Guidelines
sentences. Furthermore, the record provides adequate information from which he
was able to challenge his sentence on appeal. Therefore, he cannot satisfy the
plain error standard as neither his substantial rights nor the fairness of the judicial
proceeding were affected by the district court’s failure to comply with 18 U.S.C. §
3553(c)(2).
V. CONCLUSION
For the above-stated reasons, we affirm the sentence imposed by the district
court.
AFFIRMED.
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