Case: 18-13411 Date Filed: 07/02/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13411 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 ________________________
(July 2, 2019)
Before MARCUS, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Emilio Vazquez appeals the procedural and substantive reasonableness of his
120-month sentence—33 months above the top end of his guideline range— Case: 18-13411 Date Filed: 07/02/2019 Page: 2 of 7
imposed after pleading guilty to 1 count of wire fraud, in violation of 18 U.S.C.
§ 1343. On appeal, he argues that his sentence is procedurally unreasonable
because the district court erred by using the statutory maximum sentence of 20
years’ imprisonment as the “starting point” for fashioning his sentence. He also
argues that the sentence is substantively unreasonable.
We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We
review for plain error a procedural challenge raised for the first time on appeal.
United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). When
analyzing a claim under the plain error standard, we will look to see (1) whether
the district court committed an error, (2) that is plain, and (3) that affects
substantial rights, and if so, will reverse only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir. 2003). Plain error cannot be
established where the explicit language of a statute or rule does not resolve an
issue and there is no precedent from the Supreme Court or our Court directly
resolving it. Id. at 1291.
The third prong is satisfied when the defendant establishes “a reasonable
probability that, but for the error, the outcome of the proceedings would have been
different.” United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir. 2005)
2 Case: 18-13411 Date Filed: 07/02/2019 Page: 3 of 7
(quotation marks omitted). The Supreme Court has held that, “[i]n most cases, a
defendant who has shown that the district court mistakenly deemed applicable an
incorrect, higher Guidelines range has demonstrated a reasonable probability of a
different outcome.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346
(2016). The Court cautioned that there could be some instances when, despite the
application of an erroneous Guidelines range, a reasonable probability did not exist
because the sentencing court’s explanation made it clear that the court based its
sentence on factors independent of the Guidelines. Id. at 1346-47. However,
where the record is silent as to what the district court might have done had it
considered the correct Guidelines range, the court’s reliance on an incorrect range
in most instances will suffice to show an effect on the defendant’s substantial
rights. Id. at 1347. The Supreme Court has held that, in the ordinary case, the
failure to correct a plain guidelines error that affects a defendant’s substantial
rights will seriously affect the fairness, integrity, and public reputation of judicial
proceedings. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018).
To preserve an objection for appeal, the defendant “must raise that point in
such clear and simple language” that it “inform[s] the district court of the legal
basis for the objection.” United States v. Massey, 443 F.3d 814, 819 (11th Cir.
2006) (quotation marks omitted). In United States v. Carpenter, we held that the
defense counsel’s statement that it objected “to the substantive and procedural
3 Case: 18-13411 Date Filed: 07/02/2019 Page: 4 of 7
reasonableness of the sentence” preserved the defendant’s objections that the
district court procedurally erred by failing to consider a number of § 3553(a)
factors, treated the Guidelines as presumptively reasonable, and failed to provide a
sufficient explanation for rejecting his argument for downward variance. 803 F.3d
1224, 1232-34. Nevertheless, we found that the defendant’s objection was
insufficient to preserve his challenge to the special conditions of his supervised
release. Id. at 1237-38. In United States v. Maurice, we held that the defendant’s
objection at sentencing “as to the departure” was insufficient to preserve his three
specific objections to the departure. 69 F.3d 1553, 1556-57 (11th Cir. 1999)
(quotation marks omitted); see also United States v. Cosgrove, 73 F.3d 297, 303
(11th Cir. 1996) (holding that the defendant’s objection at sentencing that it was
“unfair” to inform him at sentencing about the sentencing policy rather than at the
plea stage did not amount to an objection that the sentencing policy violated the
defendant’s due process rights) (quotation marks omitted).
We use a two-step process to review a sentence’s reasonableness. Gall, 552
U.S. at 51. First, we must confirm “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 sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence.” Id. The district court “must treat the
4 Case: 18-13411 Date Filed: 07/02/2019 Page: 5 of 7
Guidelines as the starting point and the initial benchmark” in selecting a sentence.
Kimbrough v. United States, 552 U.S. 85, 108 (2007) (quotation marks omitted);
see also Molina-Martinez, 136 S. Ct. at 1346 (providing that “the Guidelines are
not only the starting point for most federal sentencing proceedings but also the
lodestar”). “[D]istrict courts must begin their analysis with the Guidelines and
remain cognizant of them throughout the sentencing process.” Peugh v. United
States, 569 U.S. 530, 541 (2013) (quotation marks omitted). “Even if the
sentencing judge sees a reason to vary from the Guidelines, if the judge uses the
sentencing range as the beginning point to explain the decision to deviate from it,
then the Guidelines are in a real sense the basis for the sentence.” Id. at 542
(quotation marks omitted). The district court is not required to state on the record
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Case: 18-13411 Date Filed: 07/02/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13411 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 ________________________
(July 2, 2019)
Before MARCUS, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Emilio Vazquez appeals the procedural and substantive reasonableness of his
120-month sentence—33 months above the top end of his guideline range— Case: 18-13411 Date Filed: 07/02/2019 Page: 2 of 7
imposed after pleading guilty to 1 count of wire fraud, in violation of 18 U.S.C.
§ 1343. On appeal, he argues that his sentence is procedurally unreasonable
because the district court erred by using the statutory maximum sentence of 20
years’ imprisonment as the “starting point” for fashioning his sentence. He also
argues that the sentence is substantively unreasonable.
We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We
review for plain error a procedural challenge raised for the first time on appeal.
United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). When
analyzing a claim under the plain error standard, we will look to see (1) whether
the district court committed an error, (2) that is plain, and (3) that affects
substantial rights, and if so, will reverse only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir. 2003). Plain error cannot be
established where the explicit language of a statute or rule does not resolve an
issue and there is no precedent from the Supreme Court or our Court directly
resolving it. Id. at 1291.
The third prong is satisfied when the defendant establishes “a reasonable
probability that, but for the error, the outcome of the proceedings would have been
different.” United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir. 2005)
2 Case: 18-13411 Date Filed: 07/02/2019 Page: 3 of 7
(quotation marks omitted). The Supreme Court has held that, “[i]n most cases, a
defendant who has shown that the district court mistakenly deemed applicable an
incorrect, higher Guidelines range has demonstrated a reasonable probability of a
different outcome.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346
(2016). The Court cautioned that there could be some instances when, despite the
application of an erroneous Guidelines range, a reasonable probability did not exist
because the sentencing court’s explanation made it clear that the court based its
sentence on factors independent of the Guidelines. Id. at 1346-47. However,
where the record is silent as to what the district court might have done had it
considered the correct Guidelines range, the court’s reliance on an incorrect range
in most instances will suffice to show an effect on the defendant’s substantial
rights. Id. at 1347. The Supreme Court has held that, in the ordinary case, the
failure to correct a plain guidelines error that affects a defendant’s substantial
rights will seriously affect the fairness, integrity, and public reputation of judicial
proceedings. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018).
To preserve an objection for appeal, the defendant “must raise that point in
such clear and simple language” that it “inform[s] the district court of the legal
basis for the objection.” United States v. Massey, 443 F.3d 814, 819 (11th Cir.
2006) (quotation marks omitted). In United States v. Carpenter, we held that the
defense counsel’s statement that it objected “to the substantive and procedural
3 Case: 18-13411 Date Filed: 07/02/2019 Page: 4 of 7
reasonableness of the sentence” preserved the defendant’s objections that the
district court procedurally erred by failing to consider a number of § 3553(a)
factors, treated the Guidelines as presumptively reasonable, and failed to provide a
sufficient explanation for rejecting his argument for downward variance. 803 F.3d
1224, 1232-34. Nevertheless, we found that the defendant’s objection was
insufficient to preserve his challenge to the special conditions of his supervised
release. Id. at 1237-38. In United States v. Maurice, we held that the defendant’s
objection at sentencing “as to the departure” was insufficient to preserve his three
specific objections to the departure. 69 F.3d 1553, 1556-57 (11th Cir. 1999)
(quotation marks omitted); see also United States v. Cosgrove, 73 F.3d 297, 303
(11th Cir. 1996) (holding that the defendant’s objection at sentencing that it was
“unfair” to inform him at sentencing about the sentencing policy rather than at the
plea stage did not amount to an objection that the sentencing policy violated the
defendant’s due process rights) (quotation marks omitted).
We use a two-step process to review a sentence’s reasonableness. Gall, 552
U.S. at 51. First, we must confirm “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 sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence.” Id. The district court “must treat the
4 Case: 18-13411 Date Filed: 07/02/2019 Page: 5 of 7
Guidelines as the starting point and the initial benchmark” in selecting a sentence.
Kimbrough v. United States, 552 U.S. 85, 108 (2007) (quotation marks omitted);
see also Molina-Martinez, 136 S. Ct. at 1346 (providing that “the Guidelines are
not only the starting point for most federal sentencing proceedings but also the
lodestar”). “[D]istrict courts must begin their analysis with the Guidelines and
remain cognizant of them throughout the sentencing process.” Peugh v. United
States, 569 U.S. 530, 541 (2013) (quotation marks omitted). “Even if the
sentencing judge sees a reason to vary from the Guidelines, if the judge uses the
sentencing range as the beginning point to explain the decision to deviate from it,
then the Guidelines are in a real sense the basis for the sentence.” Id. at 542
(quotation marks omitted). The district court is not required to state on the record
that it has explicitly considered each of the § 3553(a) factors or discuss each of
them. United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). After we
determines that no procedural error occurred, we then examine the substantive
reasonableness of the sentence. Gall, 552 U.S. at 51.
As an initial matter, Vazquez’s objection to the way in which the sentence
was pronounced and the court’s sentencing rulings was insufficient to preserve his
objection that the district court erred by using the statutory maximum sentence as
the “starting point” for its sentencing determination. See Maurice, 69 F.3d at
5 Case: 18-13411 Date Filed: 07/02/2019 Page: 6 of 7
1556-57; Cosgrove, 73 F.3d at 303. Accordingly, we review for plain error. See
Vandergrift, 754 F.3d at 1307.
The government concedes the district court committed an error and that the
error was obvious. See Lejarde-Rada, 319 F.3d at 1290. However, the
government argues that Vazquez has not satisfied the third prong of the plain error
standard. We disagree. Vazquez has established a reasonable probability that, but
for the error, the outcome of the proceedings would have been different. See
Henderson, 409 F.3d at 1308. Because the record is silent as to what the district
court would have done had it considered both the aggravating and mitigating
factors in reference to the advisory guideline range, Vazquez has shown that the
error affects his substantial rights. See Molina-Martinez, 136 S. Ct. at 1347;
Lejarde-Rada, 319 F.3d at 1290. Finally, the error satisfies the fourth plain-error
prong because failure to correct a plain guidelines error that affects a defendant’s
substantial rights will ordinarily seriously affect the fairness, integrity, and public
reputation of judicial proceeding. See Rosales-Mireles, 138 S. Ct. at 1908. And
because there is nothing in the instant record to distinguish this case from the
ordinary case in this regard, we conclude that Vazquez has satisfied this fourth
prong of the plain error standard. Id. at 1909 & n.4. Because the district court
plainly procedurally erred in sentencing Vazquez, we do not reach the substantive
6 Case: 18-13411 Date Filed: 07/02/2019 Page: 7 of 7
reasonableness of his sentence. Accordingly, we vacate and remand for
resentencing.
VACATED AND REMANDED FOR RESENTENCING.