United States v. Bernito Ben Eugene

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 13, 2019
• Docket: 18-14222
• Status: Unpublished

Opinion

Case: 18-14222 Date Filed: 09/13/2019 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14222 Non-Argument Calendar ________________________

D.C. Docket No. 2:16-cr-00131-SPC-CM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERNITO BEN EUGENE,

Defendant-Appellant.

________________________

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

(September 13, 2019)

Before MARCUS, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM: Case: 18-14222 Date Filed: 09/13/2019 Page: 2 of 12

Bernito Eugene appeals the procedural and substantive reasonableness of his

sentence for illegal reentry into the United States by a deported felon, in violation

of 8 U.S.C. §§ 1326(a), (b)(2). At the time of sentencing, Eugene was already

serving a 60-month sentence in Florida state prison and a fully concurrent

39-month federal sentence, both for unrelated crimes. The district court imposed a

24-month sentence, which was at the low end of the Guidelines range. It ordered

seven months to be served concurrently to the Florida sentence with the remaining

17 months served consecutively. Eugene had argued that his entire federal

sentence should run concurrently to his Florida sentence. He now appeals, arguing

that the district court’s imposition of a partially concurrent sentence was both

procedurally and substantively unreasonable.

I.

The facts surrounding Bernito Eugene’s conviction in this case are well-

known to the parties. We recount below a synopsis of those facts relevant to his

appeal.

On June 9, 2016, Eugene was arrested by the Hendry County Sheriff’s

Office for cocaine trafficking, among other charges. While he was in Hendry

County Jail, Immigration and Customs Enforcement (ICE) determined that Eugene

was a citizen of Haiti and the Bahamas and filed an immigration detainer against

him. A search of the ICE database revealed that in 1996, Eugene had been

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convicted of Aggravated Battery with a Firearm in Broward County, and that he

was deported in 1999 after serving his sentence.

While still in county jail on the cocaine trafficking charge, Eugene was

served with two federal indictments. First, on November 9, 2016, the Middle

District of Florida charged Eugene with illegal reentry (the offense relevant here).

Then, on January 20 of the following year, the Southern District of Florida charged

Eugene with aggravated identity theft and making a false statement in a passport

application.

The dispute in this appeal arises from what happened next. On May 11,

2017, Eugene received a 60-month term of imprisonment with the Florida

Department of Corrections on the cocaine trafficking charge. Then, while he was

still within the jurisdiction of the Middle District, U.S. Marshals transported

Eugene to the Southern District to stand trial for aggravated identity theft and

making a false statement on a passport application. He was arraigned on June 2.

On December 4, 2017, the Southern District sentenced Eugene to 39 months to be

served concurrently with Eugene’s 60-month Florida term. Finally, on February

22, 2018, Eugene was arrested for illegal reentry—more than 20 months after he

was indicted. In June, he pleaded guilty.

Eugene filed a sentencing memorandum pointing out that he had been in

continuous custody since June 9, 2016, including approximately seven months

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from his initial appearance in the instant case to sentencing. During these seven

months, Eugene did not accrue credit to the federal sentence at issue in this appeal.

Based on a total offense level of 15 and a criminal history category of III,

the Presentence Investigation Report calculated a Guidelines range of 24 to 30

months. Both parties stipulated to the facts in the report, and on October 1, 2018,

the district court sentenced Eugene to 24 months of incarceration, with seven

months served concurrent to Eugene’s undischarged term in state prison and the

remaining 17 months served consecutively.

II.

Generally, this Court reviews a consecutive sentence for abuse of discretion.

See United States v. Covington, 565 F.3d 1336, 1346 (11th Cir. 2009). If a claim

of procedural unreasonableness is not raised below, however, we review that claim

for plain error. See United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.

2000).

The government argues that Eugene’s general objection to the procedural

reasonableness of his sentence did not preserve the issue and that plain error

review should apply. But because Eugene’s procedural arguments are unavailing

even under the less deferential abuse-of-discretion standard, it is unnecessary to

decide whether the trial court had sufficient context to ascertain the specific ground

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of the objection. 1 Additionally, we review the substantive reasonableness of the

district court’s sentencing decision under the abuse-of-discretion standard. See

Gall v. United States, 552 U.S. 38, 51 (2007).

III.

A.

A sentence is procedurally unreasonable if the district court commits a

significant procedural error, such as “failing to consider the § 3553(a) factors” or

“failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51. The

appealing party bears the burden of showing that the district court’s sentence is

“unreasonable in light of the record and the § 3553(a) factors.” United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

When a criminal defendant is subject to an undischarged term of

imprisonment for an unrelated crime, and the new offense was not committed

during an undischarged term of imprisonment, the sentence for the new offense

“may be imposed to run concurrently, partially concurrently, or consecutively to

the prior undischarged term of imprisonment” in order to achieve a “reasonable

1 At the sentencing hearing, Eugene’s counsel objected, on both procedural and substantive grounds, “for reasons stated in our sentencing memorandum and in my argument to Your Honor today.” Unless apparent from context, “a general objection . . . will not suffice.” United States v. Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995); see also Wilson v. Attaway, 757 F.2d 1227, 1242 (11th Cir. 1985) (implying that specific grounds can be inferred from context). This rule is in place so that the trial court has “an opportunity to correct any arguable errors before an appeal is taken.” United States v. Hoffer, 129 F.3d 1196, 1202 (11th Cir. 1997). 5 Case: 18-14222 Date Filed: 09/13/2019 Page: 6 of 12

punishment” for the offense. U.S. Sentencing Guidelines Manual § 5G1.3(d) (U.S.

Sentencing Comm’n 2016) (USSG).

The application note for subsection (d) lists the factors that the sentencing

court should consider when deciding to impose the sentence concurrently, partially

concurrently, or consecutively. These factors are: (i) the § 3553(a) factors; 2 (ii) the

type and length of the undischarged sentence; (iii) “the time already served on the

undischarged sentence and the time likely to be served before release;” (iv) “the

fact that the prior undischarged sentence may have been imposed in state court

rather than federal court, or at a different time” in federal court; and (v) any other

relevant circumstance. Id. cmt. n.4.

Eugene argues that the district court procedurally erred “in failing to

adequately consider the factors enumerated in § 5G1.3’s Application Note and to

explain why those factors supported its decision to run most of Mr. Eugene’s

sentence consecutive to his undischarged sentences.” Specifically, it “failed to

2 The application note directs the court to consider the factors set forth in 18 U.S.C. § 3584, which incorporates the factors from 18 U.S.C. § 3553(a). That section provides the following seven factors, in relevant part: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant,” (2) the need for the sentence to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”; (3) “the kinds of sentences available”; (4) “the kinds of sentence and the sentencing range established” for “the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines”; (5) “any pertinent policy statement”; (6) “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”; and (7) “the need to provide restitution to any victims of the offense.” 6 Case: 18-14222 Date Filed: 09/13/2019 Page: 7 of 12

mention any consideration except deterrence” and “did not discuss other factors

that it was required to consider which militated in favor of a fully concurrent

sentence.”

We disagree. The district court’s obligation to consider certain factors does

not create an obligation to discuss those same factors. In United States v. Sanchez,

we said that the district court satisfies its procedural obligations when it “considers

the defendant’s arguments at sentencing and states that it has taken the § 3553(a)

factors into account.” 586 F.3d 918, 936 (11th Cir. 2009); see also United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (“An acknowledgment the district

court has considered the defendant’s arguments and the § 3553(a) factors will

suffice.”). Similarly, in United States v. Nagel, we found it sufficient that, before

imposing the sentence, the district court stated that it considered, among other

things, the presentence investigation report, the § 3553(a) factors, and the

statements of the parties. See 835 F.3d 1371, 1376 (11th Cir. 2016).

Here, the district court stated that it considered all mandatory factors, and it

adequately explained its sentence. During the sentencing hearing, the sentencing

judge informed Eugene that she had reviewed: arguments made by Eugene’s

counsel, a sentencing memorandum prepared by Eugene’s counsel, the presentence

investigation report, the Guidelines range, and “all of the factors” identified in

§ 3553(a). Additionally, the judge expressed awareness that significant time had

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elapsed while Eugene was under custody of the U.S. Marshals. Weighing these

factors, the judge arrived at a sentence that she believed was “sufficient but not

greater than necessary to comply with the statutory purposes of sentencing.”

Ultimately, the appellate court is looking for evidence that the sentencing

judge “considered the parties’ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356

(2007). The district court met that standard, and the record assures us that the

“sentencing process [was] a reasoned process.” Id. at 357.

B.

Once it is established that the district court properly considered the

§ 3553(a) factors, “the only limitation on running sentences consecutively is that

the resulting total sentence must be reasonable, and ordinarily a sentence within the

advisory guidelines range is reasonable.” Covington, 565 F.3d at 1347. To find a

district court’s sentence substantively unreasonable, we must be 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. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (citation omitted).

The defendant “bears the burden of demonstrating that his total sentence is

unreasonable.” Covington, 565 F.3d at 1347.

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Eugene raises three objections to the substantive reasonableness of his

sentence. None has merit.

First, Eugene argues that his Middle District sentence is unreasonable in

light of the length of his Florida sentence. Eugene’s Middle District sentence runs

17 months consecutive to his 60-month Florida sentence. Added together, this

means that Eugene will not be released until approximately 50 months after his

Middle District sentence was handed down, even though the Guidelines range for

the instant offense is 24 to 30 months. But as the government correctly points out,

the Guidelines ranges do not apply to aggregate sentences resulting from multiple

sentences imposed consecutively. Eugene cannot expect that the fortuity of his

present incarceration for a completely unrelated offense entitles him to a functional

reduction on the sentence for his current offense. In fact, he should have the

opposite expectation—both § 3584 and § 5G1.3 “evince a preference for

consecutive sentences when imprisonment terms are imposed at different times.”

United States v. Ballard, 6 F.3d 1502, 1506 (11th Cir. 1993).

Second, Eugene argues that because he was already punished for his Florida

conviction, it would be “duplicative consideration of the same criminal conduct” to

enhance his sentence for his current offense unless the judge’s imposition of a

partially-concurrent sentence completely offsets that enhancement. This argument

is both doctrinally and practically flawed. Doctrinally, sentencing enhancements

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are not properly viewed as an “additional penalty for the earlier crimes, but instead

as a stiffened penalty for the latest crime, which is considered to be an aggravated

offense because a repetitive one.” Witte v. United States, 515 U.S. 389, 400 (1995)

(quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)) (internal quotation marks

omitted); see also Moore v. State of Missouri, 159 U.S. 673, 677 (1895) (“the

punishment is for the last offense committed, and it is rendered more severe in

consequence of the situation into which the party had previously brought

himself”). Practically, sentencing enhancements would be functionally

meaningless if courts were required to offset each enhancement through concurrent

imposition. That rule would place Eugene in a better position than a defendant

facing the same charges but not already incarcerated.

Third, Eugene notes that the government’s decision to prosecute him in the

Southern District before prosecuting him in the Middle District increased his

criminal history category for the instant offense from II to III. Of course, had the

government prosecuted Eugene in reverse order, his criminal history category

would have been increased for purposes of his Southern District sentence. Eugene,

however, seems to believe that since the Southern District sentence was imposed

concurrent to his Florida sentence, the effect of an increased criminal history

category in the Southern District would have been nullified.

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There are several problems with this line of argument. Most fundamentally,

this appeal is about whether the district court abused its discretion when sentencing

the defendant, not whether government prosecutors abused their discretion in

deciding the order in which Eugene would face charges.3 At best, Eugene has

made a case that he may have fared better had he been prosecuted first in the

Middle District. But that is quite different than demonstrating that the sentencing

judge abused her discretion by not handing down a sentence that counteracted the

effect of Eugene’s prior federal conviction. Besides, as the government noted at

sentencing, there were defensible reasons to prosecute Eugene in the Southern

District first, including the fact that his crimes of aggravated identity theft and

passport fraud had real victims. Finally, Eugene’s argument requires this Court to

assume that the Southern District’s sentence would have been imposed concurrent

to Eugene’s Florida sentence even if he had appeared in the Southern District with

a recent conviction in the Middle District. That assumption is inappropriate in a

proceeding where Eugene “bears the burden of demonstrating that his total

sentence is unreasonable.” Covington, 565 F.3d at 1347.

3 The government directs us to United States v. Adair, where we said that a “person who has violated the criminal statutes of both Federal and State Governments may not complain of the order in which he is tried or punished for such offenses.” 826 F.2d 1040, 1041 (11th Cir. 1987). Here, however, Eugene is not arguing that two sovereigns prosecuted him in the wrong order, but that he was disadvantaged by the order in which he was prosecuted by the same sovereign. 11 Case: 18-14222 Date Filed: 09/13/2019 Page: 12 of 12

IV.

Eugene has not met his burden of showing that his sentence is procedurally

or substantively unreasonable, so we affirm the sentence.

AFFIRMED.