United States v. Alejandro Rosales-Gonzalez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 9, 2021
• Docket: 20-10018
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10018 Non-Argument Calendar ________________________

D.C. Docket No. 6:19-cr-00203-WWB-EJK-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALEJANDRO ROSALES-GONZALEZ, a.k.a. Alejandro Gonzales Rosales a.k.a. Alejandro Rosales,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(March 9, 2021)

Before LAGOA, BRASHER and DUBINA, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10018 Date Filed: 03/09/2021 Page: 2 of 13

Appellant Alejandro Rosales-Gonzalez appeals the district court’s

imposition of an above-guideline 36-month imprisonment sentence and its

imposition of a $4,000 fine, based on Rosales-Gonzalez’s violation of 8 U.S.C. §

1326(a) and (b)(1), illegal entry to the United States after deportation without

having received consent to re-apply for re-admission. Rosales-Gonzalez argues

that the district court erred in imposing a fine because he is unable to pay and the

fine violates the Eighth Amendment Excessive Fines Clause. Rosales-Gonzalez

also argues that the district court substantively erred in imposing an above-

guideline sentence because it relied too heavily on his criminal history, which had

been taken into account to calculate his criminal history score. After reviewing the

record and reading the parties’ briefs, we dismiss the appeal in part and affirm the

sentence.

I.

Rosales-Gonzalez was charged with violating 18 U.S.C. § 1326(a) and (b)(1)

(illegal entry after deportation without consent to re-apply for re-admission). He

pled guilty pursuant to a written plea agreement that imposed no limitation as to

the fine amount that the court could impose. The plea agreement included an

appeal waiver, in which Rosales-Gonzalez expressly waived the right to appeal his

sentence on any ground except if the sentence exceeded the applicable guideline

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range as determined by the district court or the statutory maximum penalty, if it

violated the Eighth Amendment, or if the government appealed the sentence.

At his change-of-plea hearing, Rosales-Gonzalez acknowledged that he

signed the plea agreement, he read or had someone read the agreement to him in

Spanish, his attorney reviewed the agreement and answered his questions about it,

and he understood the agreement. (R. Doc. 46.) The court explained that as part

of the plea agreement, Rosales-Gonzalez was acknowledging that the court could

sentence him to the statutory maximum and that he waived his right to appeal his

sentence except on several narrow grounds. Rosales-Gonzalez acknowledged that

he understood the appeal rights he waived under the plea agreement and pled

guilty.

A probation officer submitted a presentence investigation report (“PSI”)

which summarized Rosales-Gonzalez’s offense conduct: in 2001, he was granted

voluntary departure on two separate occasions after being apprehended by United

States Customs and Border Patrol (“CBP”); in 2004, CBP again apprehended him

and he was granted voluntary departure; and from November 2008 to September

2014, CBP encountered him five additional times and he was deported each time.

The PSI contained the following as to his criminal history: in 2011, Rosales-

Gonzalez was twice convicted of illegal entry, imprisoned for 30 days and 75 days

respectively, and deported each time after serving his imprisonment terms; less

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than two years later, he was convicted of DUI and illegal re-entry, imprisoned for

seven months, and deported; and in 2019, he was arrested for aggravated battery

with a deadly weapon and resisting an officer with violence (current offense). As

to the current offense, Rosales-Gonzalez pressed a knife to the victim’s stomach

and did not respond to the officers’ verbal commands to release the victim. The

officers used a taser to handcuff and arrest him. In addition, during the years he

was in the country illegally, Rosales-Gonzalez had several additional arrests for

DUI, driving without a license, vehicular hit and run, assault, and resisting arrest.

The probation officer determined that the maximum term of imprisonment

was ten years. Based on a total offense level of 10 and a criminal history category

of IV, the probation officer calculated the guideline range to be 15-21 months, and

the guideline fine range to be $4,000 to $40,000. The probation officer included

the annual cost of imprisonment, which was $37,448. Rosales-Gonzalez objected

to the narrative in the PSI regarding the conduct leading to his arrest for aggravated

battery with a deadly weapon and resisting an officer with violence. He also

submitted a mitigation package, including letters from family members.

At the sentencing hearing, Rosales-Gonzalez agreed that there were no

unresolved objections to the facts in the PSI. The district court adopted the PSI.

After acknowledging that it had reviewed the PSI and the § 3553(a) factors, the

district court emphasized the need to deter Rosales-Gonzalez and protect the

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public. Although the district court acknowledged that Rosales-Gonzalez pled

guilty and accepted responsibility, it noted that the current offense made the eighth

time he had been found unlawfully in the United States.

After reciting Rosales-Gonzalez’s history of illegal entries and criminal

convictions, noting that the previous sentences he received had not deterred his

conduct, and noting that Rosales-Gonzalez had committed further crimes while he

was in the country illegally, the district court stated its belief that the guidelines did

not adequately account for Rosales-Gonzalez’s criminal history and the nature of

his past offenses. Thus, based on this finding, the district court varied upward by

15 months and sentenced Rosales-Gonzalez to 36 months’ imprisonment and

imposed a $4,000 fine. The district court stated that it considered the sentencing

factors under 18 U.S.C. § 3553(a)(1)-(7) and found the sentence sufficient but not

greater than necessary to comply with the purposes of sentencing. Rosales-

Gonzalez objected to the fine because he had been declared indigent and objected

to the sentence as procedurally and substantively unreasonable.

II.

This court reviews de novo the validity of an appeal waiver. United States v.

Boyd, 975 F.3d 1185, 1190 (11th Cir. 2020). A court will enforce an appeal

waiver if it was made knowingly and voluntarily. United States v. Bascomb, 451

F.3d 1292, 1294 (11th Cir. 2006). To establish that the waiver was made

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knowingly and voluntarily, the government must show either that: (1) the district

court specifically questioned the defendant about the waiver during the plea

colloquy; or (2) the record makes clear that the defendant otherwise understood the

full significance of the waiver. Boyd, 975 F.3d at 1190. The touchstone of this

inquiry is whether it was clearly conveyed to the defendant that he was giving up

his right to appeal under most circumstances. Id. at 1192. In Boyd, we enforced an

appeal waiver where the waiver provision was referenced during the Rule 11 plea

colloquy and the defendant agreed that he understood the provision, confirmed that

he had read and discussed the agreement with his counsel, and confirmed that he

understood its terms. Id.

We conclude from the record that Rosales-Gonzalez’s claim that the district

court erred in imposing a $4,000 fine is barred by the sentence appeal waiver

because the waiver was made knowingly and voluntarily. During the plea

colloquy, the magistrate judge specifically advised Rosales-Gonzalez that he

waived the right to directly appeal his sentence on any ground as part of his plea

agreement, except in a few limited circumstances, none of which apply to this

challenge. Rosales-Gonzalez specifically indicated that he understood the terms of

the waiver, and he affirmed that he had read the plea agreement, discussed it with

counsel, and understood it. Thus, the waiver was made knowingly and voluntarily,

and it is valid and enforceable. Accordingly, we dismiss Rosales-Gonzalez’s

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challenge to the district court’s imposition of a $4,000 fine because this issue does

not fall within a waiver exception.

III.

Rosales-Gonzalez argues that the district court violated the Excessive Fines

Clause of the Eighth Amendment by imposing the $4,000 fine. He contends that

the fine was disproportional, and therefore unconstitutional, given his inability to

pay and the district court’s failure to tailor the fine to the loss his offense caused.

He asserts that because the district court made no findings before imposing the

fine, the record was insufficiently developed for appellate review and this court

should vacate his fine and remand to the district court for further proceedings. The

government responds that Rosales-Gonzalez did not assert this specific challenge

in the district court, and his claim is thus subject to plain error review. The

government contends that Rosales-Gonzalez cannot demonstrate plain error, and

this court should affirm.

We review de novo whether a fine is excessive, in violation of the Eighth

Amendment’s Excessive Fines Clause. See United States v. Seher, 562 F.3d 1344,

1370 (11th Cir. 2009) (reviewing Eighth Amendment challenge for forfeiture

order). A fine constitutes an excessive fine “if it is grossly disproportional to the

gravity of a defendant’s offense.” Id. at 1371 (quotation marks omitted). To

determine whether a fine is grossly disproportional to the defendant’s offense, we

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consider (1) whether the defendant is in the class of persons at whom the criminal

statute was primarily directed; (2) what other penalties were authorized for the

offense by the legislature or the Sentencing Commission; and (3) the harm caused

by the defendant. United States v. Sperrazza, 804 F.3d 1113, 1127 (11th Cir.

2015) (reviewing forfeiture order). We strongly presume that a fine within the

range of fines allowed by Congress for the offense is constitutional. Seher, 562

F.3d at 1371. Whether a fine is excessive is determined in relation to the

characteristics of the offense, not the characteristics of the offender. United States

v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 2036 (1998) (reviewing

forfeiture order). In conducting the three-pronged analysis of proportionality to

determine whether a fine is excessive, we do not consider the impact the fine

would have on an individual defendant. Seher, 562 F.3d at 1371.

The maximum statutory fine for an illegal reentry conviction is $250,000.

18 U.S.C. § 3571(b)(3). The guideline fine range for a defendant with a total

offense level of 10 is $4,000 to $40,000. U.S.S.G. § 5E1.2(c)(3). In determining

whether to impose a fine and the amount of any fine, the district court should

consider, among other factors, the defendant’s ability to pay, the burden that the

fine may place on the defendant and his dependents, and the expected costs of

imprisonment. U.S.S.G. § 5E1.2(d)(7); 18 U.S.C. § 3572(a)(6).

To preserve an issue for appeal, a defendant must raise it in clear and simple

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language so that the trial court will not misunderstand it. United States v. Ramirez-

Flores, 743 F.3d 816, 821 (11th Cir. 2014). A defendant fails to preserve an issue

for appeal if the factual predicate of the objection is included in the sentencing

record, but the objection is presented to the court under a different legal theory. Id.

Assuming arguendo that Rosales-Gonzalez preserved the issue for review,

when applying the test described in Sperrazza, we conclude that the district court

did not err in imposing the fine. First, Rosales-Gonzalez is within the class of

persons whom the illegal reentry statute was meant to cover because he repeatedly

entered the United States after being deported. See 8 U.S.C. § 1326(a), (b)(1);

Sperrazza, 804 F.3d at 1127. Second, the fine is not grossly disproportionate to his

offense, particularly in light of the other penalties authorized for the offense. See

id. In addition, the fine is well below the statutory maximum fine of $250,000, and

thus is entitled to a presumption of constitutionality. See Seher, 562 F.3d at 1371;

18 U.S.C. § 3571(b)(3). Further, because his fine is at the bottom of the guideline

range, it is presumptively constitutional. See U.S.S.G. § 5E1.2(c)(3); Seher, 562

F.3d at 1371.

Furthermore, based on its review of the record, the district court considered

the harm caused by Rosales-Gonzalez and noted the number of times he entered

the United States illegally and the additional criminal conduct in which he engaged

while he was illegally present in this country, including battery and DUI. The

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district court specifically noted that driving while under the influence of alcohol

puts everyone on the road at risk. The district court also noted that the cost of

imprisonment for Rosales-Gonzalez will far exceed the $4,000 fine.

Accordingly, based on our review of the record and application of the three-

prong proportionality test outlined in Sperrazza, we conclude that the district court

did not err in imposing the $4,000 fine. The fine was not grossly disproportionate

to Rosales-Gonzalez’s offense conduct and did not violate the Excessive Fines

Clause. Thus, we affirm the district court’s imposition of the fine.

IV.

Rosales-Gonzalez argues that the district court erred when it imposed a

significant upward variance to his sentence (15 months). He contends that the

district court mainly focused on his criminal history in sentencing him and did not

consider any mitigating factors. He claims that he is a “mine-run” case (meaning he

is an average illegal-reentry defendant who only reenters a few times and has a low

criminal history score), so this court should closely scrutinize the district court’s

justifications for the variance. The government responds that the district court’s

sentence was within its discretion and appropriate.

We review the reasonableness of a sentence under the deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). The party challenging a sentence bears the burden of demonstrating that the

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sentence is unreasonable in light of the record, the factors listed in 18 U.S.C. §

3553(a), and the substantial deference afforded sentencing courts. United States v.

Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). The weight given to any

specific § 3553(a) factor is committed to the sound discretion of the district court.

United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). A district court can

abuse its discretion when it (1) fails to consider relevant factors that were due

significant weight, (2) gives an improper or irrelevant factor significant weight, or

(3) commits a clear error of judgment by balancing the proper factors unreasonably.

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). A district

court may consider a defendant’s prior criminal conduct when imposing an upward

variance, even though the probation officer already considered that conduct when

calculating the guideline range. United States v. Moran, 778 F.3d 942, 984 (11th

Cir. 2015).

Based on our review of the record, we conclude that the district court did not

abuse its discretion in varying upward by 15 months in imposing Rosales-

Gonzalez’s sentence. The district court stated at sentencing that it was placing a

heavy emphasis on the nature and circumstances of the offense in light of Rosales-

Gonzalez’s prior criminal history, promoting respect for the law, and deterring

Rosales-Gonzalez from continued violations of the prohibition against him illegally

entering the country. The instant offense was, conservatively, Rosales-Gonzalez’s

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sixth illegal entry into the United States. The district court noted that his previous

sentences for illegal reentry had not deterred him from continuing to violate the law,

both in reentering this country illegally and committing crimes while in the United

States illegally. The district court made an individualized assessment after weighing

the nature and circumstances of Rosales-Gonzalez’s conviction for illegal reentry as

well as his history and characteristics as a repeat offender. The district court had

discretion to place specific emphasis on these factors, and Rosales-Gonzalez cannot

demonstrate that the district court committed a clear error of judgment in doing so.

Rosales-Gonzalez urges this court to remand because the district court did not

consider sentence disparity in varying upward, but the case he cites for support is

distinguishable and not binding on our court. See United States v. Perez-Rodriguez,

960 F.3d 748 (6th Cir. 2020) (defendant did not have a pattern of illegal entries, nor

did his past acts present an ongoing risk of harm to the public, and his criminal

history category was II). Furthermore, Rosales-Gonzalez’s reference to statistics on

the sentences imposed on illegal reentry offenders does not show that his sentence

was unreasonable.

We conclude, from the record, that the district court was within its discretion

to weigh Rosales-Gonzalez’s criminal history more heavily in considering an

upward variance, especially because not all of his illegal entries and arrests were

accounted for in the calculation of his criminal history category. Moreover, we note

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that his resulting sentence was well below the statutory maximum of ten years, which

is an indication of reasonableness. See Rosales-Bruno, 789 F.3d at 1256–57.

Accordingly, for the aforementioned reasons, we conclude that the district court did

not substantively err in varying upward and sentencing Rosales-Gonzalez to 36

months’ imprisonment.

DISMISSED IN PART AND AFFIRMED IN PART.