United States v. Antonio Darias , 211 F. App'x 899 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 21, 2006
No. 06-11984 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80098-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO DARIAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 21, 2006)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Antonio Darias appeals his 72-month sentence imposed after he was
convicted by a jury for nine counts of smuggling aliens into the United States for
financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). The presentence
investigation report (“PSI”) calculated his advisory guideline range as 30 to 37
months, based on his offense, the number of persons smuggled, and a two-level
enhancement for obstruction of justice. However, a statutory mandatory minimum
applied, making his guideline range sentence 60 months, pursuant to U.S.S.G. §
5G1.1(b).1 The government moved for an upward departure pursuant to U.S.S.G.
§§ 5K2.0(a)(1)(A) and 5K2.21, or in the alternative an upward variance based on
the sentencing factors in 18 U.S.C. § 3553(a). The government based this motion
on Darias’s obstruction of justice after his indictment for the smuggling offense.
At sentencing, the district court found that Darias had obstructed justice,
justifying the two-level enhancement. The court also found that Darias’s
obstruction of justice bore on the nature and circumstances of the offense. The
court then imposed a sentence of 72 months. The court never ruled on the upward
departure motion.
On appeal, Darias argues that the district court was not authorized to adjust
his sentence based on § 3553(a) factors, because a mandatory minimum applied.
He further argues that the district court erred by departing from the guideline range
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“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.” U.S.S.G. §5G1.1(b).
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without properly ruling on the government’s upward departure motion. He also
argues that his constitutional rights were violated by the district court’s variance
based on uncharged conduct, which was not decided by a jury or proven beyond a
reasonable doubt. Finally, he asserts that his characteristics and the nature of the
offense made any departure from the 60 month guideline sentence unwarranted.
We review a district court's findings of fact for clear error and its
application of the Sentencing Guidelines de novo. United States v. Cartwright, 413
F.3d 1295, 1298 (11th Cir. 2005) (per curiam), cert. denied, 74 U.S.L.W. 3393
(2006). We review a defendant's ultimate sentence for reasonableness, in light of
the factors listed in 18 U.S.C. § 3553(a). United States v. Martin, 455 F.3d 1227,
1237 (11th Cir. 2006). However, where a defendant raises a sentencing argument
for the first time on appeal, we review only for plain error. United States v.
Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005). Under plain error review, there
must be (1) an error, (2) that is plain, and (3) that affects substantial rights. Id. at
1328-29. If these three prongs are met, we may exercise our discretion to notice
the error but only if it “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. at 1329.
Darias argues that the district court erred by varying his sentence based on
the § 3553(a) factors because the “[e]xcept as otherwise specifically provided”
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language of § 3551(a) prevents their consideration where a mandatory minimum
applies. We find no merit to this argument. After United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), a district court is required to
consider the § 3553(a) factors in fashioning a reasonable sentence. Although the
sentencing statute limits the court’s authority to impose a sentence below the
statutory minimum, it does not limit the court’s authority to impose a sentence
above the minimum. See 18 U.S.C. § 3553(e) and (f). Therefore, the court did not
err in varying based on the § 3553(a) factors.
Darias also argues that the district court erred by not ruling on the
government’s motion for upward departure. Since Darias did not object at
sentencing, we review only for plain error. An error is plain when it is obvious or
clear under current law. United States v. Baker, 432 F.3d 1189, 1207 (11th Cir.
2005). After Booker, a district court is no longer required to sentence within the
range provided by the Sentencing Guidelines, but it is still obligated to correctly
calculate that Guideline range. United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005) (per curiam). We have held that the “application of the guidelines is not
complete until the departures, if any, that are warranted are appropriately
considered.” United States v. Jordi, 418 F.3d 1212, 1215 (11th Cir. 2005). The
district court was required to consult the correctly calculated guideline. Because
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there was no ruling on the government’s upward departure motion, it could not do
so. Not consulting the correctly calculated range is plain error. Nevertheless this
error was not prejudicial, because even assuming that an upward departure was not
warranted, the district court could, and did, vary the sentence using § 3553(a)
factors. Thus, there is no evidence that had the court ruled on the government’s
motion that Darias’s sentence would be different.
Next, Darias raises, for the first time, a constitutional objection to the use of
his obstruction of justice to enhance his sentence. He argues that if such an offense
is sufficient to warrant a significant sentence enhancement, the Constitution may
require that such conduct be prosecuted and proven beyond a reasonable doubt. We
disagree. Darias admitted to the underlying facts by not objecting to them in the
PSI report. Shelton, 400 F.3d at 1330 (holding that factual findings set forth in a
PSI not objected to by a defendant are deemed admitted). Post-Booker, this circuit
has continued to allow the district court to consider relevant conduct, including that
for which the defendant was not charged or acquitted, for enhancements under the
sentencing guidelines, so long as the conduct is proven by a preponderance of the
evidence. See United States v. Faust, 456 F.3d 1342, 1347 (11th Cir. 2006).
Therefore, the district court did not commit a clear or obvious error in relying on
such conduct to vary Darias’s sentence.
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Finally, Darias argues that neither his offense nor his characteristics
warranted a sentence above the statutory mandatory minimum. In addition, he
maintains that the court did not explain why it imposed a sentence outside the
guideline range. We review sentences under the advisory guideline regime for
reasonableness. Booker, 125 S. Ct. at 765. Reasonableness review is deferential,
requiring us to "evaluate whether the sentence imposed by the district court fails to
achieve the purposes of sentencing as stated in section 3553(a).” United States v.
Talley, 431 F.3d at 788. While the district court must consider the § 3553(a)
factors, it is not required to state explicitly that it has done so or to discuss each
factor on the record. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
It is sufficient for the court to state the it has considered the defendant’s sentencing
arguments and § 3553(a) factors. Id. at 1330. Darias bears the burden of
establishing that his sentence is unreasonable in light of the record and § 3553(a)
sentencing factors. Talley, 431 F.3d at 788.
After the imposition of the statutory minimum, the guideline range sentence
became 60 months, pursuant to U.S.S.G. § 5G1.1(b). The district court could
impose an upward variance after considering the § 3553(a) sentencing factors. See
United States v. Eldick, 443 F.3d 783, 789 (11th Cir. 2006) (per curiam). The
district court clearly considered the § 3553(a) sentencing factors and imposed a
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reasonable sentence. The court reasoned that Darias’s three attempts to obstruct
justice were related to his history and characteristics, and the nature and
circumstances of his offense. The court also stated that it had considered the
sentencing factors. The court did not need to address every argument for a
variance on the record, and given Darias attempts to evade punishment, the district
court’s decision was not unreasonable.
Upon a review of parties’ arguments and the record on appeal, we can
discern no reversible error, and therefore we affirm the decision of the district
court.
AFFIRMED.
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