United States v. Victor Alonso-Martinez , 574 F. App'x 923 ( 2014 )

Case: 13-15904 Date Filed: 09/23/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15904
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-00267-AT-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR ALONSO-MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 23, 2014)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Case: 13-15904 Date Filed: 09/23/2014 Page: 2 of 6
Victor Alonso-Martinez appeals the substantive reasonableness of his 36-
month imprisonment sentence for illegal reentry into the United States, in violation
of 8 U.S.C. § 1326(a), (b)(2). We affirm.
I. BACKGROUND
Alonso-Martinez was arrested on May 29, 2013 in Georgia for driving
without a valid license. Investigation revealed he previously had been deported
and was not lawfully in the United States. He was transferred to the custody of
United States Immigration and Customs Enforcement (“ICE”). In July 2013, a
federal grand jury charged Alonso-Martinez with illegal reentry into the United
States following deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). He pled
guilty without a written plea agreement.
Under the Sentencing Guidelines, Alonso-Martinez had a base offense level
of eight, pursuant to U.S.S.G. § 2L1.2(a). He received a 16-point increase under §
2L1.2(b)(1)(A)(ii), because he previously had been deported after sustaining a
conviction for a felony crime of violence. Specifically, Alonso-Martinez had been
convicted of two counts of aggravated assault in Kansas. He had placed his former
girlfriend in fear of immediate bodily harm using deadly weapons: broken beer
bottles and a knife. Alonso-Martinez had been sentenced to 12 months of
probation in Kansas, but he had been deported to Mexico before he could complete
his sentence.
2
Case: 13-15904 Date Filed: 09/23/2014 Page: 3 of 6
In this case, Alonso-Martinez received a three-point reduction to his offense
level for acceptance of responsibility under § 3E1.1(a) and (b), resulting in a total
offense level of 21. Alonso-Martinez had a criminal history category of I and a
Sentencing Guidelines range of 37 to 46 months of imprisonment.
Before sentencing, Alonso-Martinez requested a downward departure and
argued the 16-point increase under § 2L1.2(b)(1)(A)(ii) for his aggravated assault
convictions grossly overstated the seriousness of his prior conduct. He contended
the aggravated assault convictions should not be deemed crimes of violence,
because the victim did not sustain injuries during the incident. Alonso-Martinez
also requested a downward variance based on the mitigating factors of his strong
work ethic and his desire to support his family.
The district judge denied Alonso-Martinez’s request for a downward
departure and found he had engaged in frightening behavior. The judge
determined Alonso-Martinez’s former girlfriend justifiably had feared for her life.
Moreover, children had been present when he threatened her with broken beer
bottles and a knife. The judge acknowledged Alonso-Martinez had a strong work
ethic and a strong desire to support his family in Mexico. Nevertheless, the judge
3
Case: 13-15904 Date Filed: 09/23/2014 Page: 4 of 6
concluded a sentence at the low end of the Sentencing Guidelines range was
sufficient and sentenced Alonso-Martinez to 36 months of imprisonment. 1
II. DISCUSSION
On appeal, Alonso-Martinez argues his 36-month sentence is substantively
unreasonable, because the district judge placed undue weight on the Sentencing
Guidelines range, which was based entirely on his prior convictions for aggravated
assault. A district judge must impose a sentence that is both procedurally and
substantively reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007). Alonso-Martinez argues only that his sentence is substantively
unreasonable and has abandoned any arguments regarding procedural
unreasonableness. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004)
(per curiam). We review the reasonableness of a sentence “under a deferential
abuse-of-discretion standard.” Gall, 552 U.S. at 41, 128 S. Ct. at 591.2 The party
who challenges the sentence bears the burden of establishing that it is
unreasonable. United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014).
1
The low end of the Sentencing Guidelines range was 37 months of imprisonment. The
district judge considered the 36-month sentence to be within the Guidelines range, because the
judge gave Alonso-Martinez credit for time served in ICE custody.
2
Because Alonso-Martinez did not object to the substantive reasonableness of his
sentence at sentencing, the government argues our review may be for plain error. We need not
decide whether plain-error review applies, however, because we conclude there was no error,
plain or otherwise.
4
Case: 13-15904 Date Filed: 09/23/2014 Page: 5 of 6
We examine whether a sentence is substantively reasonable in view of the
totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128
S. Ct. at 597. The § 3553(a) factors to be considered by a sentencing court include
(1) the nature and circumstances of the crime and the history and characteristics of
the defendant, (2) the need for the sentence imposed to reflect the seriousness of
the crime, to promote respect for the law, and to provide just punishment for the
offense, (3) the need to protect the public from further crimes of the defendant, and
(4) the applicable Guidelines range. 18 U.S.C. § 3553(a). 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)
(internal quotation marks omitted). In addition, a sentence may be substantively
unreasonable if a district judge unjustifiably relied on any one § 3553(a) factor,
failed to consider pertinent § 3553(a) factors, selected the sentence arbitrarily, or
based the sentence on impermissible factors. Id. at 1191-92.
Alonso-Martinez has not shown his sentence is substantively unreasonable
in light of the totality of the circumstances and the § 3553(a) factors. The district
judge recognized the 16-point increase for his prior aggravated assault convictions
was “exceedingly rough justice,” ROA at 187, but still concluded the prior conduct
involved more than mere threats. Alonso-Martinez had threatened his former
girlfriend with broken beer bottles and a knife, while he was intoxicated and with
5
Case: 13-15904 Date Filed: 09/23/2014 Page: 6 of 6
children present. The victim justifiably had feared for her life. The judge also
considered Alonso-Martinez’s work ethic and desire to care for his family and
noted she had the “highest of respect” for those characteristics. ROA at 189.
Nevertheless, the judge determined she could not ignore Alonso-Martinez’s prior
criminal conduct. Under the totality of the circumstances and the § 3553(a)
factors, the district judge did not abuse her discretion by imposing a 36-month
imprisonment sentence.
AFFIRMED.
6