United States v. Ramiro Hernandez-Garrido , 477 F. App'x 615 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 23, 2012
No. 11-14476
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 2:11-cr-00015-WCO-SSC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
RAMIRO HERNANDEZ-GARRIDO,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 23, 2012)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Ramiro Hernandez-Garrido appeals his 35-month sentence imposed after he
pled guilty to one count of re-entry of a deported alien, in violation of 8 U.S.C. §
1326(a), (b)(2). He argues that his sentence, which was within the guidelines
range for his offense, was substantively unreasonable in light of the 18 U.S.C. §
3553(a) factors. After careful review, we affirm.
I.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591 (2007). A sentence is substantively unreasonable if, considering the
totality of the circumstances, the court weighed the § 3553(a) factors unreasonably
and imposed a sentence that did not achieve the purposes of sentencing outlined in
§ 3553(a). United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc),
cert. denied, 131 S. Ct. 1813 (2011). We will vacate a sentence only if we have
“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.” Id. at
1990 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).
The district court must impose a sentence that is “sufficient, but not greater
than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a),
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including the need to reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, deter criminal conduct, and protect
the public from the defendant’s future criminal conduct. See 18 U.S.C. §
3553(a)(2). The district court must also consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the kinds of sentences
available, the applicable guidelines range, the pertinent policy statements issued
by the Sentencing Commission, the need to avoid unwarranted sentencing
disparities, and the need to provide restitution to victims. Id. § 3553(a)(1),
(3)–(7).
A party who challenges his sentence bears the burden to show that it is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert. denied, 131 S. Ct. 674 (2010).
Although we do not automatically presume that a sentence falling within the
guidelines range is reasonable, we ordinarily expect it to be. United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
II.
Hernandez-Garrido’s 35-month sentence is within the guidelines range and
well below the 20-year statutory maximum penalty for his offense. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam) (taking into
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account that a sentence was well below the statutory maximum when determining
that sentence was substantively reasonable). However, Hernandez-Garrido argues
that there are two reasons why a lower sentence should have been imposed.
First, Hernandez-Garrido points out that he received a 12-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(B) even though the district court was aware that §
2L1.2 was scheduled to be amended. Hernandez-Garrido argues that had he been
sentenced six weeks later under the amended guidelines, he would have only
received an 8-level enhancement. That would have made his applicable guidelines
range 18 to 24 months. Although Hernandez-Garrido concedes that the
amendment to § 2L1.2 was not retroactive, he contends that the Supreme Court’s
reasoning in Kimbrough v. United States instructs that the district court
nevertheless should have reduced his sentence. 552 U.S. 85, 128 S. Ct. 558(2007). We disagree.
In Kimbrough, the district court sentenced a defendant to a below-
guidelines sentence for his crack and powder cocaine related offenses and
commented that the case exemplified the “disproportionate and unjust effect that
crack cocaine guidelines have in sentencing.” Id. at 93, 128 S. Ct. at 565 (quoting
district court). The appellate court found that the district court committed an
abuse of discretion in granting the downward variance. However, the Supreme
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Court found relevant the unique history of the sentencing guidelines for crack and
powder cocaine offenses. The Court commented that in formulating the guidelines
ranges for crack cocaine offenses, “the [Sentencing] Commission . . . did not take
account of empirical data and national experience.” Id. at 109, 128 S. Ct. at 575
(quotation marks and citation omitted). The Court also pointed out that “the
Commission itself has reported that the crack/powder disparity produces
disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses
‘greater than necessary’ in light of the purposes of sentencing set forth in §
3553(a).” Id. at 110, 128 S. Ct. at 575. The Court then determined that, “[g]iven
all this, it would not be an abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder disparity yields a sentence
‘greater than necessary’ to achieve § 3553(a)’s purposes.” Id.
Hernandez-Garrido argues that at the time of his sentencing, § 2L1.2 was an
equally unfair sentencing provision that lacked grounding in empirical data.
However, even if Hernandez-Garrido’s contention were correct, that would still
not support reversal of his sentence. The Court in Kimbrough found that it was
not an abuse of discretion for a district court to grant a below-guidelines sentence
under the circumstances of that case. In no way does that holding compel—or
even allow—a conclusion that under the same circumstances, it would have been
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an abuse of discretion for the district court to grant a sentence within the
guidelines.
Next, Hernandez-Garrido contends that his sentence was unreasonable
given his “modest criminal history aside from [his] 1992 drug conviction,” his
history of working to support his family, and the motivation for his illegal re-entry
to the United States—a desire to provide for his family. He also claims that the
district court gave too much weight to the fact that he appropriated his brother’s
identity. Hernandez-Garrido contends that the manner in which he misused his
brother’s identity was “less aggravated in nature” than the government asserted
and that he has manifested no intent to continue using the fraudulent identity. The
district court in determining Hernandez-Garrido’s sentence heard these arguments;
it also reviewed the Pre-sentence Investigation Report, considered all of the
relevant circumstances of Hernandez-Garrido’s case and background, and weighed
the § 3553(a) factors. Because Hernandez-Garrido has failed to show that the
district court committed an abuse of discretion in the weighing of those § 3553(a)
factors, we affirm the district court.
AFFIRMED.
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