United States v. Esteban Miguel-Andres

509 F. App'x 971
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 21, 2013
Docket12-13695
StatusUnpublished

This text of 509 F. App'x 971 (United States v. Esteban Miguel-Andres) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Esteban Miguel-Andres, 509 F. App'x 971 (11th Cir. 2013).

Opinion

PER CURIAM:

On April 22, 2012, appellant Esteban Miguel-Andres, a citizen of Mexico, pled guilty to illegal re-entry, in violation of 8 U.S.C. § 1326(a), (b)(1), and on June 28, 2012, the District Court sentenced him to a prison term of 21 months. The court fashioned appellant’s sentence first by departing upward from the Guidelines sentence range of 2 to 8 months to a range of 9 to 15 months pursuant to U.S.S.G. § 4A1.3, and then, using the sentencing factors of 18 U.S.C. § 3553(a), imposing an upward variance — all because of appellant’s extensive criminal history, which we digest in the margin. 1 On appeal, Miguel-Andres argues that his sentence was proeedurally and substantively unreasonable.

I.

Whether appellant’s sentence is procedurally unreasonable turns on whether the District Court abused its discretion in carrying out the procedures necessary to fashion a sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). A court abuses its discretion if it treats the Guidelines as mandatory rather than advisory, erroneously calculates the Guidelines sentence range, fails to consider the purposes of sentencing set out in 18 U.S.C. § 3553(a), finds facts that are clearly erroneous, or fails to explain why it chose the sentence imposed. Gall, 552 U.S. at 51, 128 S.Ct. at 597; United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005).

Appellant argues that the District Court abused its discretion because (1) it failed to follow the procedure for departing from the Guidelines sentence range; (2) the evidence of his criminal record was unreliable: and (3) it failed adequately to explain the basis for its upward variance. The gist of the first argument is that the court failed to move incrementally along the guidelines, explain why appellant’s criminal history category of III was inadequate, or compare his category with others in category V, which the court chose.

Appellant failed to object to the court’s alleged failure to comply with the departure procedure or its purported failure to explain the basis for its upward variance. We therefore review such failures for plain error. 2 We find none, much less error. The only objection appellant made at sentencing concerned the reliability of the evidence concerning his criminal record. We now address that objection.

Appellant contends that the evidence of his criminal record was unreliable because, consisting of computer printouts, it constituted hearsay. The printouts contained a disclaimer as to accuracy, and the court indicated that it “had trouble figuring out what these printouts say.”

*973 Under U.S.S.G. § 4A1.3, a district court may impose an upward departure if “reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(l) (emphasis added). While the mere fact of an arrest is not sufficiently reliable to support a departure, § 4A1.3 grants the district courts broad authority to consider “reliable information” when contemplating a departure; the court may consider such things as the summary of the facts surrounding the incident. United States v. Williams, 989 F.2d 1137, 1142 (11th Cir.1993).

We review for clear error the district court’s finding of a prior conviction. See United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir.1999) (finding “no clear error” in district court’s finding that defendant had been convicted of carrying a concealed weapon). Although the Government bears the burden of establishing a prior conviction by a preponderance of the evidence, it does not need to present a certified copy of the conviction. See id. In Wilson, for example, the Government presented factual statements contained in the presentence report, on-the-record statements of a probation officer, and notes of another probation officer. Id. This information, taken together, was sufficiently reliable to establish a conviction. Id.

To prove appellant’s prior convictions, the Government submitted computer printouts from the website of the municipal court of Hamilton County, Ohio. At the sentencing hearing, the Government entered into evidence a letter from a federal probation officer in Ohio confirming the accuracy of these printouts. The District Court stated that it found this evidence reliable, and nothing in the record exists to challenge this finding.

In addition, the court was permitted to consider the printouts even though they constituted hearsay. First, the fact that the probation officer confirmed their validity shows that they were reliable. See Anderton, 136 F.3d at 751. Second, the court explicitly determined that they were credible. See id. Finally, the court gave appellant an opportunity to show that they were riot reliable and to rebut the information contained within them. See id. He did neither.

In sum, we reject appellant’s argument that his sentence is procedurally unreasonable. We turn, then, to his argument that it is substantively unreasonable.

II.

Appellant contends that his sentence is substantively unreasonable because the variance was greater than necessary to achieve the sentencing goals of § 3553(a) and was based on his criminal history to the exclusion of the other § 3553(a) factors.

We review the reasonableness of a sentence for abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. at 597. A sentence must be “sufficient, but not greater than necessary to comply with the purposes” of sentencing set out in § 3553(a)(2), 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). Additionally, the court must consider the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guideline range, the pertinent policy statements of the Sentencing Com *974 mission, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

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Related

United States v. Wilson
183 F.3d 1291 (Eleventh Circuit, 1999)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Gonzalez
550 F.3d 1319 (Eleventh Circuit, 2008)
United States v. Shaw
560 F.3d 1230 (Eleventh Circuit, 2009)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Sampson Williams, A/K/A MacKey Sampson
989 F.2d 1137 (Eleventh Circuit, 1993)

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Bluebook (online)
509 F. App'x 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-esteban-miguel-andres-ca11-2013.