United States v. Luis Alonzo-Ubina , 261 F. App'x 256 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10223 JANUARY 8, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00343-CR-T-27-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALONZO-UBINA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 8, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Luis Alonzo-Ubina appeals his convictions and sentences for
conspiracy to possess with intent to distribute five kilograms or more of cocaine on
board a vessel subject to the jurisdiction of the United States, under 46 U.S.C.
App. § 1903(a), (g), and (j) and 21 U.S.C. § 960(b)(1)(B)(ii), and possession with
intent to distribute five kilograms or more of cocaine, while aboard a vessel subject
to the jurisdiction of the United States, in violation of 46 U.S.C. App. § 1903(a)
and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii).
Alonzo-Ubina raises two grounds on appeal. First, he argues that the district
court violated 18 U.S.C. § 201(c)(2) by allowing cooperating co-conspirators to
testify. Second, he argues that his sentence is procedurally and substantively
unreasonable.
We review de novo the district court’s interpretation of 18 U.S.C.
§ 201(c)(2). United States v. Lowery, 166 F.3d 1119, 1122 (11th Cir. 1999). We
have held that “[t]estimony derived through plea agreements is common in trials
and does not violate 18 U.S.C. § 201(c)(2), the statute that prohibits bribing
witnesses.” U.S. v. Thayer, 204 F.3d 1352, 1357 (11th Cir. 2000).
Alonzo-Ubina acknowledges that our precedent forecloses his argument that
the district court erred in allowing testimony of cooperating co-conspirators
because such testimony violates 18 U.S.C. § 201(c)(2), but he nevertheless raises
the issue to preserve it for further review. Based on our caselaw, Alonzo-Ubina’s
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argument fails.
Second, Alonzo-Ubina argues that his sentence is unreasonable because it
fails to meet the purposes of sentencing under § 3553(a), including that the district
court failed to consider the disparity between his sentence and the sentences that
his co-conspirators received.
When reviewing a sentence for reasonableness, we first must ensure that the
district court judge correctly calculated the Sentencing Guidelines range. United
States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). We then review the
sentence for reasonableness in light of the 18 U.S.C. 3553(a) factors and must
determine whether the sentence fails to achieve the purposes of sentencing set forth
in that statute. United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006).
Unreasonableness may be procedural or substantive. United States v. Hunt, 459
F.3d 1180, 1182 n. 3 (11th Cir. 2006). A sentence may be procedurally
unreasonable if “it is the product of a procedure that does not follow Booker’s
requirements, regardless of the actual sentence.” Id. Moreover, a sentence may be
procedurally unreasonable if the district court failed to consider the relevant
§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). A
sentence “may be substantively unreasonable, regardless of the procedure used.”
Hunt, 459 F.3d at 1182 n. 3. When reviewing a sentence for reasonableness, “we
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will remand for resentencing 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 by arriving at a sentence that lies outside the range of reasonable
sentences dictated by the facts of the case.” United States v. Williams, 456 F.3d
1353, 1363 (11th Cir. 2006), cert. dismissed, 127 S. Ct. 3040 (2007).
The weight accorded to the § 3553(a) factors is within the district court’s
discretion. Id. The § 3553(a) factors include: (1) the nature and circumstances of
the offense and the history and characteristics of the defendant; (2) the need for the
sentence (A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense, (B) to afford adequate
deterrence to criminal conduct, (C) to protect the public from further crimes of the
defendant, and (D) to provide the defendant with needed educational or vocational
training or medical care; (3) the kinds of sentences available; (4) the Sentencing
Guidelines range; (5) pertinent policy statements of the Sentencing Commission;
(6) the need to avoid unwarranted sentencing disparities; (7) and the need to
provide restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).
Here, Alonzo-Ubina does not challenge the district court’s guideline
calculation, so the only issue on appeal is reasonableness. Regarding Alonzo-
Ubina’s procedural reasonableness argument, before imposing this sentence, the
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district court explicitly stated that it had considered the § 3553(a) factors.
Procedurally, the court complied with Booker. See Talley, 431 F.3d at 786.
Regarding Alonzo-Ubina’s substantive reasonableness challenge, to the extent that
Alonzo-Ubina argues that the district court failed to give weight to his factors
asserted in support of a reasonable sentence, such as the need for rehabilitation, his
personal circumstances, and his cooperation, the weight accorded to various factors
is within the district court’s discretion. See Williams, 456 F.3d at 1363. Further,
Alonzo-Ubina’s 324-month sentence was at the bottom of the guideline range and
well below the statutory maximum of life imprisonment. See 21 U.S.C.
§ 960(b)(1)(B)(ii). Also, the record demonstrates that Alonzo-Ubina is not similar
to his co-conspirators, and there was no unwarranted sentencing disparity. Based
on this record, Alonzo-Ubina has not met the burden of establishing the
unreasonableness of his sentence. Accordingly, we affirm his sentence.
AFFIRMED.
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