United States v. Heriberto Brito-Padilla

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 2, 2021
• Docket: 20-13035
• Status: Unpublished

Opinion

USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13035 Non-Argument Calendar ________________________

D.C. Docket No. 6:19-cr-00597-LSC-JHE-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERIBERTO BRITO-PADILLA,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(August 2, 2021)

Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 2 of 13

Heriberto Brito-Padilla appeals his 78-month sentence for illegal reentry into

the United States after deportation following the commission of an aggravated

felony. The Sentencing Guidelines advised a sentence range of 12 to 18 months’

imprisonment, but after weighing the sentencing factors in 18 U.S.C. § 3553(a), the

district court imposed an upward variance of 60 months. Mr. Brito-Padilla argues

his sentence is substantively unreasonable1 because the district court abused its

discretion in weighing the § 3553(a) factors by placing too much weight on his

past drug-trafficking conviction and a pending drug-trafficking charge, not placing

enough weight on his personal history and characteristics, and creating an

unwarranted disparity in sentences with similarly situated defendants. After

thorough review and for the reasons explained below, we affirm.

I.

In October 2019, Mr. Brito-Padilla was arrested by local law enforcement in

Alabama for, and was subsequently charged with, drug trafficking related to his

possession of 56 grams of methamphetamine. He admitted to law enforcement that

he was not legally present in the United States after having been deported in 2003.

He subsequently pleaded guilty in federal court to one count of illegally reentering

the United States after having been deported subsequent to a conviction for an

1 Mr. Brito-Padilla does not argue that his sentence is procedurally unreasonable. 2 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 3 of 13

aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(1), and (b)(2), the

offense from which this appeal arises.

For this illegal-reentry offense, the Sentencing Guidelines advised a range of

12 to 18 months’ imprisonment. The offense established a base offense level of

eight. From there, Mr. Brito-Padilla received an eight-point enhancement because

he had a prior felony conviction with a sentence of more than two years; before his

deportation in 2003, he had been convicted in 2001 in North Carolina for one count

of trafficking in marijuana and one count of trafficking in cocaine. He received a

three-point reduction for acceptance of responsibility. This all established a total

offense level of 13. His criminal history category was I; his prior 2001 drug

convictions did not increase the category because they were too old to be assigned

criminal history points. The criminal history category of I and the total offense

level of 13 resulted in the 12-to-18-month Guidelines range for the instant illegal

reentry offense to which Mr. Brito-Padilla plead guilty.

At sentencing, Mr. Brito-Padilla did not object to the pre-sentencing report2

and requested a sentence of 12 months and one day’s imprisonment based in part

on his personal circumstances, including his intent to enter the United States to

find a better life, his wife’s recent illness, and the need to support his family in

2 Mr. Brito-Padilla had objected to a prior version of the pre-sentencing report but indicated at the sentencing hearing that all objections had been resolved. 3 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 4 of 13

Mexico. He also emphasized that his prior drug trafficking convictions had

already been counted by the Sentencing Guidelines, and he asked the United States

government for forgiveness.

The government asked for a sentence of at least 16 months’ imprisonment,

noting that Mr. Brito-Padilla had been found in possession of 56 grams of

methamphetamine during the most recent arrest and had the prior drug convictions.

The district court imposed a sentence of 78 months’ imprisonment and 3

years’ supervised release with no fines and a special assessment of $100. The

court explained that, despite his expression of an intent to better his life, Mr. Brito-

Padilla’s apparent intent for entering the United States was to cause destruction by

dealing drugs. The court expressed its intent to impose a sentence beyond the

Guidelines range because of Mr. Brito-Padilla’s prior drug convictions and his

pending drug charge. That is, although Mr. Brito-Padilla’s prior drug trafficking

convictions did not raise his criminal history in the Sentencing Guidelines

calculation, the court explained that the convictions and sentence for the prior

offenses of trafficking in marijuana and cocaine, as well as the most recent drug

trafficking arrest and pending charge, indicated that Mr. Brito-Padilla had not been

deterred from such conduct after serving the prior sentence. As for Mr. Brito-

Padilla’s pending charge—i.e., the state methamphetamine trafficking charge, the

arrest for which gave rise to the illegal reentry conviction and instant sentencing—

4 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 5 of 13

the court emphasized that the charge related to possession of 56 grams of

methamphetamine, a large amount of the drug. Considering this large amount, the

district court expressed that it would be “ridiculous” to impose a sentence within

the Guidelines range for the illegal reentry conviction, which arose from the arrest

related to the possession of the methamphetamine. Finally, the district court stated

that the sentence of 78 months’ imprisonment would run concurrently with any

related state sentence for the pending methamphetamine trafficking charge, though

the district court acknowledged that it was the normal course for the state charges

to be dismissed in similar cases.

The district court entered judgment, and Mr. Brito-Padilla filed a timely

notice of appeal of his sentence.

II.

When reviewing for substantive reasonableness of a sentence, we consider

the totality of the circumstances under a deferential abuse-of-discretion standard.

Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445

(2007). “A district court abuses its discretion when it (1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors.” United States v. Irey, 612 F.3d

1160, 1189 (11th Cir. 2010) (en banc) (quoting United States v. Campa, 459 F.3d

5 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 6 of 13

1121, 1174 (11th Cir. 2006) (en banc)). The proper factors for consideration

include the nature and circumstances of the offense, the criminal history and

characteristics of the defendant, the seriousness of the crime, the promotion of

respect for the law, just punishment, adequate deterrence, the protection of the

public, and the need to avoid unwarranted sentence disparities among similarly

situated defendants. 18 U.S.C. § 3553(a). The district court need not give all

factors equal weight and has discretion to attach great weight to one factor over

another. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).

“Indeed, ‘[t]he weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.’” United States v.

Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quoting United States v. Clay,

483 F.3d 739, 743 (11th Cir. 2007)). Along with the § 3553(a) factors, the district

court should consider the particular facts of the case and the Guidelines range.

Rosales-Bruno, 789 F.3d at 1259–60. The party challenging a sentence has the

burden of showing the sentence is unreasonable in light of the § 3553(a) factors

and the particular facts and circumstances of the case. United States v. Isaac, 987

F.3d 980, 994 (11th Cir. 2021).

If a sentence is outside the Guidelines range, our Court—in reviewing the

district court’s sentencing decision—may not apply a presumption of

unreasonableness, and we may not disturb a sentence simply because we “might

6 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 7 of 13

reasonably have concluded that a different sentence was appropriate.” Gall, 552

U.S. at 47, 128 S. Ct. at 595. Instead, in reviewing the substantive reasonableness

of a sentence imposed outside the Guidelines range, we may take the degree of

variance into account and consider the extent of a deviation from the Guidelines.

Gall, 552 U.S. at 47, 128 S. Ct. at 594–95. “Although there is no proportionality

principle in sentencing, a major variance does require a more significant

justification than a minor one—the requirement is that the justification be

‘sufficiently compelling to support the degree of the variance.’” Irey, 612 F.3d at

1196 (quoting Gall, 552 U.S. at 50, 128 S. Ct. at 597).

In particular, a district court may impose an upward variance from the range

advised by the Guidelines if the court concludes that the Guidelines range was

insufficient in light of the defendant’s criminal history. United States v. Johnson,

803 F.3d 610, 619 (11th Cir. 2015) (upholding upward variance in part because the

district court reasonably concluded the Guidelines range understated the

seriousness of the defendant’s recent criminal history); see United States v. Osorio-

Moreno, 814 F.3d 1282, 1288 (11th Cir. 2016) (“We have upheld large upward

deviations based solely on an offender’s extensive criminal history.”). Such an

upward variance may be based on conduct that was already considered in

calculating the Guidelines range—i.e., the district may properly conclude that the

defendant’s criminal history category fails to adequately reflect his criminal history

7 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 8 of 13

and thus the court may properly consider “prior criminal conduct in varying

upward, even though the conduct already was factored into the advisory guidelines

range.” Johnson, 803 F.3d at 619. On the upper end, we have upheld upward

variances matching the statutory maximum as reasonable in light of the

circumstances of the case and when necessary to achieve the purposes set out in

§ 3553(a). See, e.g., Osorio-Moreno, 814 F.3d at 1284, 1288 (upholding upward

variance from a Guidelines range of 51 to 63 months to the statutory maximum of

120 months as “necessary to achieve the goals of sentencing” in § 3553(a)); United

States v. Shaw, 560 F.3d 1230, 1232, 1240 (11th Cir. 2009) (upholding upward

variance from a Guidelines range of 30 to 37 months to the statutory maximum of

120 months “[g]iven all of the circumstances, which were adequately recited and

taken into account by the district court”). And that a sentence imposed is below

the statutory maximum (despite being higher than the Guidelines range) is a factor

indicating that the sentence is reasonable. United States v. Hunt, 941 F.3d 1259,

1264 (11th Cir. 2019) (upholding 60-month sentence, a 23-month upward variance

from the 30-to-37-month Guidelines range but below the 10-year statutory

maximum); Rosales-Bruno, 789 F.3d at 1256–57 (“The sentence the district court

imposed was 33 months below the statutory maximum of 120 months, which is a

consideration favoring its reasonableness.”).

8 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 9 of 13

III.

In this case, the district court reasonably imposed a 78-month sentence, a 60-

month upward variance from the upper end of the Guidelines range of 12 to 18

months. Acting within its direction, the district court sufficiently justified its

sentencing decision at the sentencing hearing. The court articulated why it

believed a sentence within the Guidelines range was unreasonable and why an

upward variance was necessary. Examining the nature of the instant offense—an

offense of illegal reentry following deportation after conviction of an aggravated

felony and one arising from a methamphetamine-trafficking arrest—the district

court expressed its concern for harm to the public from Mr. Brito-Padilla’s

repeated drug dealing and its concern that Mr. Brito-Padilla had not been deterred

from such conduct after having previously served a drug-trafficking sentence. The

district court also reasonably determined that the instant offense involved a large

about of methamphetamine, indicating a larger sentence was necessary. These

circumstances undermined Mr. Brito-Padilla’s expressed intent for entry to the

United States; as the district court explained, his apparent intent was instead to deal

drugs and cause the destruction that results from such dealing. The district court

was presented with Mr. Brito-Padilla’s personal and familial characteristics and

reasonably chose to give them less weight in light of his criminal history and the

9 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 10 of 13

nature of the instant offense. The district court’s reasoning provides a sufficient

basis to conclude that the sentence imposed was substantively reasonable.

In addition, Mr. Brito-Padilla’s sentence of 78 months (or 6 years and 6

months) was significantly less than the statutory maximum sentence of 20 years.

This is a further indication of the reasonableness of the sentence.

Mr. Brito-Padilla makes three arguments in support of his conclusion that

the sentence was not substantively reasonable. He argues that because the

Guidelines had already significantly factored in Mr. Brito-Padilla’s prior

convictions, those convictions did not warrant such a major upward variance. But

the district court, in its broad discretion and with regard to the purposes of

§ 3553(a), could properly consider the prior drug trafficking convictions even

though they had been considered in calculating the Guidelines range and ultimately

did not count toward his criminal history category. See Johnson, 803 F.3d at 619.

And the district court could afford the prior offenses considerable weight, as it

explained, given their nature and the nature of the instant conduct that led to the

offense for which Mr. Brito-Padilla was being sentenced, one also related to drug

trafficking. That is, because the prior convictions and the instant offense all related

to drug trafficking and because the offense for which he was being sentenced was

illegal reentry post-deportation following those prior drug convictions, it was

10 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 11 of 13

reasonable for the district court to afford to the prior convictions more weight than

that given by the Guidelines.

Mr. Brito-Padilla also argues that the district court gave too much weight to

his pending state drug charge as opposed to the instant federal offense for which he

was being sentenced, the illegal reentry offense. But the district court—again

within its broad discretion and pursuant to the § 3553(a) factors—properly

explained that it was giving weight to the nature and circumstances of the instant

federal illegal reentry offense, which arose from the conduct underlying the state

drug charge. That is, Mr. Brito-Padilla plead guilty to illegal reentry following his

arrest related to possession of 56 grams of methamphetamine, and the district court

was well within its discretion to consider and heavily weigh those exact

circumstances.3 Therefore, despite Mr. Brito-Padilla’s emphasis on his personal

characteristics and familial circumstances, we cannot conclude that the district

abused its discretion in giving less weight to such factors and considering his

criminal history and the nature of the instant offense more significant.

Finally, Mr. Brito-Padilla argues the upward variance in his case has the

tendency to create an unwarranted disparity among similarly situated defendants.

Citing no case law, he directs us to statistics from the U.S. Sentencing Commission

3 Mr. Brito-Padilla did not object to the factual basis on which the district court relied (i.e., the PSR to which there was no objection). Therefore, Mr. Brito-Padilla’s suggestion that the district court misconstrued the facts relating to the pending state meth charges was not preserved. 11 USCA11 Case: 20-13035 Date Filed: 08/02/2021 Page: 12 of 13

indicating that courts varied—either upward or downward—in only 8 percent of

illegal reentry cases and the average sentence imposed for immigration offenses for

defendants with certain criminal history categories is much lower than what he

received. See Opening Br. at 13–14. “A well-founded claim of disparity,

however, assumes that apples are being compared to apples.” United States v.

Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (quoting United States v. Mateo-

Espejo, 426 F.3d 508, 514 (1st Cir. 2005)). Mr. Brito-Padilla fails to explain why

the statistics upon which he relies represent the cases of similarly situated

defendants or why any disparity created is unwarranted given the district court’s

reasons for the upward variance. We have required much more detail in

considering whether any unwarranted disparity is created by a particular sentence.

See, e.g., United States v. Hill, 643 F.3d 807, 885 (11th Cir. 2011) (concluding that

the defendant’s sentence did not create an unwarranted disparity after considering

particular circumstances of the defendant’s conduct and rejecting the comparison

between the sentence and those convicted of similar crimes elsewhere in the nation

because “we [we]re not convinced that a sentence imposed in this circuit is subject

to a national grade curve”); Docampo, 573 F.3d at 1102 (concluding appellant

failed to identify any similarly situated defendant to trigger § 3553(a)(6)’s concern

for unwarranted sentencing disparities). Thus, the district court did not abuse its

discretion in considering any unwarranted disparity.

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For these reasons, Mr. Brito-Padilla has failed to meet his burden of showing

his above-Guidelines-range sentence was substantively unreasonable.

AFFIRMED.