United States v. Geormani Hernandez Gari , 394 F. App'x 585 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15533 ELEVENTH CIRCUIT
AUGUST 24, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-10026-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORMANI HERNANDEZ GARI,
DIUVEL RODRIGUEZ,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(August 24, 2010)
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Geormani Hernandez Gari and Diuvel Rodriguez were convicted of 33
counts of alien smuggling, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). They
contend that their 96-month sentences, which are 36 months higher than the 60-
month statutory mandatory minimum and 84 months lower than the 180-month
statutory maximum, are procedurally and substantively unreasonable.
I.
We review the final sentence imposed by a district court for reasonableness.
United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767 (2005). First, we
ensure that the district court did not commit a procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.”1 Gall
v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007). If we determine that
the district court’s sentencing decision is procedurally sound, we review the
1
The § 3553(a) factors that must be considered are: (1) the nature and circumstances of
the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence
imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (4) the need for adequate deterrence to criminal conduct; (5)
protection of the public from further crimes of the defendant; (6) the kinds of sentences
available; (7) the applicable guideline range and any pertinent policy statement issued by the
Sentencing Commission; (8) the need to avoid unwarranted sentencing disparities; and (9) the
need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a)(1)–(7).
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substantive reasonableness of the sentence only for abuse of discretion, taking into
account the totality of the circumstances, including the extent of any variance from
the guideline range. Id. at 51, 128 S.Ct. at 597. “[T]he party who challenges the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of both that record and the factors in section 3553(a).” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). While we ordinarily expect a sentence
within the guidelines range to be reasonable, we do not presume that a sentence
outside the guidelines range is unreasonable. Id. at 788; Gall, 552 U.S. at 51, 128
S.Ct. at 597.
“If [the sentencing judge] decides that an outside-Guidelines sentence is
warranted, he must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.” Id. at
50, 128 S.Ct. at 597. The Supreme Court has instructed:
[An appellate court] may consider the extent of the deviation, but
must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance. The
fact that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of
the district court.
Id. at 51, 128 S.Ct. at 597. We will remand for resentencing based on substantive
unreasonableness 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
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by arriving at a sentence that lies outside the range of reasonable sentences dictated
by the facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.
2008) (quotation marks omitted).
II.
Gari’s and Rodriguez’s PSI guidelines calculations were exactly the same.
Their base offense level was 12. See U.S.S.G. § 2L1.1(a)(3). There was a 6-level
increase because the offense involved 25–99 aliens. See id. § 2L1.1(b)(2)(B).
There was a 2-level increase because “the offense involved intentionally or
recklessly creating a substantial risk of death or serious bodily injury to another
person.” See id. § 2L1.1(b)(6). With a total offense level of 20 and a criminal
history category of I, their guidelines range was 33 to 41 months. After applying
the statutory mandatory minimum of five years, however, their guidelines sentence
became 60 months. See id. § 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 guideline sentence.”)). Neither
defendant objected to the PSI.
A.
Gari and Rodriguez were originally sentenced in 2007. At that sentence
hearing, counsel for Rodriguez pointed out to the district court that the guidelines
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sentence was 33 to 41 months, which was increased to 60 months because of the
mandatory minimum. Rodriguez’s counsel described this as “a run-of-the-mill
alien smuggling case” and argued for a 60-month sentence. Counsel for Gari did
the same, asserting that a 60-month sentence would “take[ ] into consideration the
promoting respect for society [sic] and also as a deterrent” factors under § 3553(a).
The district court commented that eleven alien smuggling defendants in
seven different cases had appeared before it for sentencing on that day alone.
Based on its docket and the § 3553(a) factors, the district court stated that a
sentence was required which would “afford[ ] adequate deterrence to others who
would contemplate engaging in similar conduct.” The court explained:
The frequency that these [alien smuggling] cases arise and the need
for a sentence to promote respect for the law and to provide for
adequate deterrence, particularly, I think, in this South Florida
community and in the Key West community, in particular has seen an
increasing number of these kinds of cases, and accompanied by a
flagrant disregard for the law that prohibits this kind of activity.
I think people are on notice of this kind of illegal behavior and the
consequences of it, and yet they seem to continue this sort of
disregard of the law and divert scarce law enforcement resources. . . .
After stating that it had considered the parties’ arguments, the PSI, which included
the advisory guidelines, and the § 3553(a) factors, the district court sentenced each
of the defendants to 96 months running concurrently on all 34 counts of their
convictions. Counsel for both defendants objected to the upward variance.
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B.
Gari and Rodriguez challenged both their convictions and sentences in an
earlier appeal. United States v. Gari, 572 F.3d 1352, 1358 (11th Cir. 2009). We
reversed their convictions on count 4 based on insufficient evidence but affirmed
on the other 33 counts.2 Id. We declined to review the sentences for
reasonableness and remanded for resentencing in light of the vacated count. Id. at
1366 (citing United States v. Lail, 814 F.2d 1529, 1530 (11th Cir. 1987). We
issued this mandate to the district court:
We commit the decisions as to whether to conduct a resentencing
hearing and as to the scope of any such hearing to the discretion of the
district court. See United States v. Rogers, 848 F.2d 166, 169 (11th
Cir. 1988) (recognizing that a district court may properly limit the
scope of a resentencing hearing on remand because “it [is] in the
interest of judicial economy for the court not to redo that which had
been done correctly at the first hearing.”).
Id. at 1366.
On October 14, 2009, the district court conducted a resentencing hearing
with counsel for Rodriguez present. Gari was not available at that time. The court
observed that because the defendants had been convicted on numerous counts and
only a single count had been vacated, it was inclined to impose the same sentence.
2
All 34 counts of conviction were for alien smuggling in violation of 8 U.S.C. §
1324(a)(2)(B)(iii). Gari, 572 F.3d at 1358–59. Count 4 referred to alien Maria Domiguez-
Alvarez, and we held that “no reasonable jury could conclude that Alvarez did not have prior
authorization to enter the United States, an element of the crime.” Id. at 1360.
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Nonetheless, the court decided to review the transcript from the original 2007
sentence hearing in order to review the arguments made by the parties and its own
reasons for imposing an above-the-guidelines sentence, and it instructed the
government and defense counsel to submit a copy of the transcript.3
C.
The court continued the resentence hearing until October 22, 2009, and at
that hearing both Gari and Rodriguez were present, each with his own lawyer. The
court explained that it had reviewed the transcript of the original 2007 sentence
hearing. It asked the parties why it “should not reimpose the sentence that was
originally imposed” when the nature and scope of the criminal conduct had
remained basically unchanged. Even though one count of the defendants’
convictions had been vacated, the advisory guidelines sentence of 60-months was
the same. Even so, the court permitted defense counsel to address the § 3553(a)
factors and to present a “reasonableness” arguments about the original 96-month
sentences.
Counsel for Rodriguez asked the court to consider the extent of the upward
variance, particularly in light of what the guidelines sentence would have been but
for the 60-month mandatory minimum. Counsel mentioned that Rodriguez’s
3
The same district court judge presided over the defendants’ trial, their original 2007
sentence hearing, and their 2009 resentencing proceedings.
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mother had become very ill. Counsel also argued that the desire “to remove
people, Cuban nationals, from a communist-fascist nation” motivates people in the
community in a way that cannot be deterred by sentencing above the mandatory
minimum. She downplayed the seriousness of Gari and Rodriguez’s offenses,
emphasizing that the court had sentenced other defendants convicted of alien
smuggling crimes in cases that had involved more dangerous chases by law
enforcement, some of which had resulted in injury or death. She stated that
Rodriguez was now prepared to accept responsibility for his actions, that he had
been gainfully employed ever since he first came to the United States, and that he
could be a contributing member of society again. The court then heard from
Rodriguez’s mother, who said he was hardworking and a good son who helped to
support her. Rodriguez addressed the court, apologizing and asking for another
chance.
Counsel for Gari emphasized that the defendants were “merely workers” and
that they had not organized the smuggling trip. She argued that Gari had taken
responsibility for his actions and had not been “written up for anything” in prison.
Gari addressed the court, apologizing and stating that he accepted responsibility for
his actions. Even so, he tried to explain away his crimes, stating that he had been
“deceived” by two people who had told him that their relatives were stranded on a
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boat that had broken down in Cay Sol, and he merely went to pick up those people.
When he got there, 34 people were waiting. He asserted that he did not “charge
any money” and did not “derive any benefit” from what he had done. Gari
concluded by telling the district court that he and Rodriguez “were simply puppets
of those other people who are out on the streets.” In response to a question from
the district court, counsel for Gari admitted that Gari had come to the United States
illegally in 2004.
The government called as a witness Brian Michael Chapman, a lieutenant in
the Coast Guard. Chapman testified about the resources used by the Coast Guard
in conducting an interdiction and how that affects the Coast Guard’s ability to
perform its other duties. The court commented that one of the reasons “this type of
offense is serious [is] because it takes the Coast Guard away from its other
important non-law enforcement missions.” Defense counsel argued that no more
law enforcement resources were used here than in the typical case and that use of
those resources could not justify an upward variance from the guidelines sentence.
The court incorporated its remarks from the original sentence hearing and
made some additional comments about the § 3553(a) factors. Considering the
nature and circumstances of the offense, the court found that it was inherently
dangerous to try to cross the Florida Straits in a 33-foot boat at night without
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running lights and overloaded with 34 people. In its assessment of the seriousness
of the offense, the court emphasized the importance of maintaining the security of
the nation’s borders, stating:
And those who are attempting to come to the United States and cross
our borders for whatever reason, for whatever their motivation, whatever their
perceived sense of what’s right or wrong, they are penetrating the physical security
of the United States and certainly in the straits of Florida. They do it with a brazen
impudence that somehow it’s a right that they have to challenge the physical
integrity of the United States.
The court concluded that it could not “overstate the seriousness of the
offense and the significance of trying to maintain a secure border; . . . a punishment
should reflect the seriousness of that type . . . of offense, and that a punishment is
necessary to deter others who might engage in similar kinds of behavior.” The
court explained that it had considered the parties’ arguments, the PSIs with their
calculation of the advisory guidelines, and the § 3553(a) factors. It then reimposed
the 96-month sentences that it had ordered at the original 2007 hearing.
III.
The district court properly considered and adequately explained its findings
about the nature and circumstances of the offense, see 18 U.S.C. § 3553(a)(1), its
seriousness, see id. § 3553(a)(2)(A), the need to promote respect for the law, see
id., and the need for the sentence imposed “to afford adequate deterrence to
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criminal conduct,” id. § 3553(a)(2)(B). A district court is not required to discuss
its consideration of every one of the § 3553(a) factors, as long as the sentencing
judge “set[s] forth enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct.
2456, 2468 (2007). The court emphasized the need for the sentences to reflect the
seriousness of the offense and explained why it considered these offenses to be
particularly serious. Emphasizing the large number of alien smuggling crimes in
the area and the serious threat they pose to national security, the court focused on
the need for general deterrence.
Gari and Rodriguez contend that an unwarranted sentencing disparity was
created because other defendants, who were sentenced on the same day by the
same district judge, were sentenced within their guidelines ranges for alien
smuggling offenses. At their initial sentencing Gari and Rodriguez argued that
there had not been a high speed chase in their case, and no one was seriously put at
risk of injury before they eventually pulled over in a marina and stopped their boat.
Similarly, at their resentence hearing they argued that the court had seen “different
degrees of chase” in other cases: “And to be sure, this Court has seen other levels
of chase and other levels of endangerment, some involving death. And this case
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did not present it.” R. Vol. 8 at 11.
We have explained that “[d]isparity between the sentences imposed on
codefendants is generally not an appropriate basis for relief on appeal.” United
States v. Regueiro, 240 F.3d 1321, 1325–26 (11th Cir. 2001). That also holds true
for allegations of disparity when the same judge on the same day sentences
multiple defendants in different cases on convictions for similar crimes. The
information provided in Rodriguez’s brief to this Court about other defendants’
sentences fails to establish that the district court created an unwarranted sentencing
disparity when it imposed an upward variance in Gari and Rodriguez’s case. The
guidelines range for six of the nine other defendants Rodriguez mentions is listed
as unknown, so it is impossible to compare those sentences even in terms of
possible variances.4 In the present case, simply comparing the length of other
defendants’ sentences for purportedly similar crimes does not establish an
unwarranted sentencing disparity.
Taking into account the totality of the circumstances, we cannot say that the
district court abused its discretion by sentencing Gari and Rodriguez to 96 months
4
Rodriguez’s brief includes a chart listing the “defendant’s name,” “guidelines,”
“sentence,” and “aggravating factors” for Gari and Rodriguez and for nine other defendants the
district court sentenced on the same day. Br. of Appellant Rodriguez at 34. For five of those
other defendants, the “guidelines” is listed as “unknown” and another one is listed as “n/a” based
on that defendant’s fugitive status. Id.12
imprisonment, which was 84 months below the 15-year statutory maximum
sentence. The district court did not “weigh[ ] the factors in a manner that
demonstrably yields an unreasonable sentence.” Pugh, 515 F.3d at 1191.
AFFIRMED.
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