United States v. Juan Manuel Jimenez-Sandoval , 262 F. App'x 130 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 09 2008
No. 06-16638 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14045-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL JIMENEZ-SANDOVAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 9, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Juan Manuel Jiminez-Sandoval appeals his sentence of 70 months of
imprisonment following a plea of guilty to illegal reentry following deportation.
See 8 U.S.C. § 1326(a). Jiminez argues that the district court erred when it failed
to rule on Jiminez’s motion for a downward departure based on over-representation
of his criminal history, see United States Sentencing Guidelines § 4A1.3(b) (Nov.
2005), and imposed an unreasonable sentence. We affirm.
Jiminez first argues that he moved for a downward departure based on over-
representation of his criminal history category, see U.S.S.G § 4A1.3(b), and the
district court committed procedural error when it failed to rule on that motion
before sentencing Jiminez. The government responds that Jiminez never moved
for a downward departure, but instead asked for a variance. We agree with the
government.
Jiminez did not raise any objection about the failure to consider a downward
departure. Jiminez filed a pre-sentence “Request To Be Sentenced Below the
Advisory Guideline Range,” and argued, “A review of the factors announced in 18
U.S.C. § 3553(a) mitigate against such a harsh sentence.” Jiminez asked for “a
reasonable sentence” below the recommended Guidelines range, but did not ask for
a “departure” or reference section 4A1.3(b). At sentencing, Jiminez again argued
about the characteristics of his criminal history, but did not ask for a “departure” or
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reference section 4A1.3(b). The district court did not err when it treated Jiminez’s
request as an argument for a variance instead of as a motion for a downward
departure. To the extent that Jiminez contends that the district court committed
plain error, his argument fails because the record establishes that the district court
considered the advisory Guidelines and there is nothing in the record to suggest
that the district court was ignorant of its authority to grant a downward departure.
Jiminez next argues that the district court imposed an unreasonable sentence.
He contends that the advisory sentencing Guideline for unlawful reentry after
deportation with a history of a conviction for a crime of violence is overly harsh
and incommensurate with the statutory goals of the immigration statute. Jiminez
argues that because the Guidelines range was greater than necessary to effectuate
the purposes of sentencing, see 18 U.S.C. § 3553(a), his sentence was
unreasonable.
We review a sentence for reasonableness, United States v. Talley, 431 F.3d
784, 785 (11th Cir. 2005), which is “a deferential abuse-of-discretion standard,”
Gall v. United States, No. 06–7949, slip op. at 2 (U.S. Dec. 10, 2007). We “must
first ensure that the district court committed no significant 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
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sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, slip op. at 12. We then “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Id. "[W]hen the district court imposes a sentence within the advisory Guidelines
range, we ordinarily will expect that choice to be a reasonable one." Talley, 431
F.3d at 788.
The district court did not abuse its discretion when it imposed on Jiminez a
sentence of 70 months of imprisonment. The transcript of the sentencing hearing
establishes that the district court sentenced Jiminez after careful consideration of
Jimenzez's arguments in favor of mitigation, the advisory sentencing Guidelines,
and the sentencing factors of section 3553(a). The district court stated that,
although Jiminez’s criminal history “does indicate not serious offenses,” it also
indicated that Jiminez “doesn’t think the rules apply to him.” Jiminez’s sentence at
the low end of the advisory guidelines range, was reasonable.
Jiminez’s sentence is
AFFIRMED.
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