United States v. Emilio Vasquez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 6, 2021
• Docket: 19-14514
• Status: Unpublished

Opinion

USCA11 Case: 19-14514 Date Filed: 01/06/2021 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14514 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-20076-RNS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMILIO VAZQUEZ, a.k.a. Emilio Serralles,

Defendant-Appellant.

________________________

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

(January 6, 2021)

Before JILL PRYOR, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 19-14514 Date Filed: 01/06/2021 Page: 2 of 5

Emilio Vazquez appeals his 108-month sentence—21 months above the top

end of the guideline range—imposed on remand after pleading guilty to one count

of wire fraud. Vazquez argues his sentence is substantively unreasonable because

he received no financial gain, saved numerous lives through his fraud, and has long

suffered from mental illness. He further argues that the court placed undue weight

on his criminal history and that despite his past crimes, the sentence lies outside a

reasonable sentence dictated by the facts of the case and should be vacated.

When reviewing for substantive reasonableness, we consider the totality of

the circumstances under a deferential abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007). The party challenging the sentence bears the

burden of establishing that it is unreasonable based on the facts of the case and the

§ 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

We will reverse for abuse of discretion only if we are “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.

Kirby, 938 F.3d 1254, 1257 (11th Cir. 2019) (quotation marks omitted).

The district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the factors and purposes” in § 3553(a), which include

“the need to reflect the seriousness of the offense, promote respect for the law,

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provide just punishment for the offense, deter criminal conduct, and protect the

public.” United States v. Plate, 839 F.3d 950, 957 (11th Cir. 2016). The 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 of the Sentencing Commission,

the need to avoid unwarranted sentencing disparities, and the need to provide

restitution to the victim.” Id.

The weight given to any specific § 3553(a) factor is “committed to the sound

discretion of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007) (quotation marks omitted). Nonetheless, a 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). Moreover, a court’s

unjustified reliance on any one § 3553(a) factor may indicate an unreasonable

sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006).

District courts have broad leeway in deciding how much weight to give to

prior crimes that the defendant has committed. United States v. Rosales-Bruno,

789 F.3d 1249, 1261, 1263 (11th Cir. 2015) (“Placing substantial weight on a

defendant’s criminal record is entirely consistent with § 3553(a) because five of

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the factors it requires a court to consider are related to criminal history.”). When

the ultimate sentence is reasonable in light of all the circumstances, we will not

second guess the weight that the district court placed on a particular factor or

factors. United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010). And a court’s

failure to specifically mention certain mitigating factors at sentencing does not

compel the conclusion that the sentence was substantively unreasonable. Id. at

873.

A sentence outside the guideline range is not presumptively unreasonable,

and we must give due deference to the district court’s decision that the § 3553(a)

factors justify a variance. Irey, 612 F.3d at 1187. But checking “to see that the

justification is sufficiently compelling remains the duty of the court of appeals.”

Id. The court’s justification must be “compelling enough to support the degree of

the variance and complete enough to allow meaningful appellate review,” but “an

extraordinary justification” is not required for a sentence outside the guideline

range. United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation

marks omitted). Finally, a sentence imposed well below the statutory maximum

penalty is an indicator of reasonableness. United States v. Croteau, 819 F.3d 1293,

1310 (11th Cir. 2016).

Vazquez has not shown that his sentence is unreasonable based on the facts

of the case and the § 3553(a) factors. See Tome, 611 F.3d at 1378. The court’s

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statements at the resentencing about the mitigating and aggravating circumstances

reflect sufficient consideration and weighing of the § 3553(a) factors. See Plate,

839 F.3d at 957; Clay, 483 F.3d at 743. Contrary to Vazquez’s argument that the

court ignored mitigating facts, the court adequately acknowledged mitigating

circumstances and stated it considered the statements of the parties and the PSI,

which included information about his mental health; the court was not required to

specifically mention his mental health for the sentence to be reasonable. See

Snipes, 611 F.3d at 873.

While a court’s unjustified reliance on any one § 3553(a) factor may indicate

an unreasonable sentence, the court placing substantial weight on Vazquez’s

criminal record is discretionary and justified given his five prior prison sentences

and pattern of fraud offenses dating back to 2001. See Rosales-Bruno, 789 F.3d

1261-63. The court provided sufficient justification—the seriousness of the

offense, deterrence, the impact on charitable efforts, and the criminal history—for

the degree of upward variance applied. See Shaw, 560 F.3d 1238. And a sentence

132 months below the statutory maximum indicates reasonableness. See Croteau,

819 F.3d 1310.

For those reasons, the district court did not abuse its discretion because the

108-month sentence was substantively reasonable. Accordingly, we affirm.

AFFIRMED.